Record No. 1824-92-4Court of Appeals of Virginia.
January 26, 1993
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Nancy Repa Toker; Wochok, Robertson, Notarius McNeil, on brief), for appellants.
(Peter W. Sweeny, on brief), for appellee.
Present: Judges Barrow, Moon and Bray
MEMORANDUM OPINION[*]
PER CURIAM
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers’ Compensation Commission. Rule 5A:27.
American Airlines, Inc. and its insurer contend that the commission erred in determining (1) that $8013.45 of injury benefits paid to Gail Webster should not be averaged over the entire period of disability (from April 4, 1990 through August 23, 1990); and (2) that full compensation, minus a small credit, is still owed to Webster for the month of June 1990 and for the period of August 1, 1990 through August 23, 1990.
On April 4, 1990, Webster sustained an injury by accident arising out of and in the course of her employment as a flight attendant for American Airlines. Her average weekly wage at that time was $1,482.75. Her claim was accepted as compensable by her
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employer and, pursuant to an award of the commission dated August 22, 1990, the employer was to pay Webster compensation for total work incapacity at the weekly rate of $382.00 from April 12, 1990 through August 23, 1990.
The employer and Webster agreed that she returned to work on August 24, 1990 at her full pre-injury wage. However, Webster maintained at the hearing that payments made to her by the employer from April 12, 1990 through August 23, 1990 were not salary, wages, earnings or compensation, but rather were an injury benefit pursuant to a contract for which the employer is not entitled any credit. Alternatively, Webster argued that, to the extent that she was paid less than her average weekly wage, she was entitled to compensation for temporary partial work incapacity as the difference or she was entitled to the difference between what she was actually paid and what her compensation would have been under the award.
The commission found that the payments made to Webster during her period of work incapacity, pursuant to the contract between American Airlines and its flight attendants, constituted an injury leave benefit to which the employer and its insurer were entitled a credit. This finding has not been appealed. The commission did not agree with the employer that the $8013.45 paid to Webster should be averaged over the entire period of disability. Rather, relying upon Harrelson v. Amoco Oil Co., 68 O.I.C. 231 (1989), the commission found that the credit must be limited to wage payments made to Webster up to an amount equal to
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but not greater than the amount of weekly compensation due under the award. The figures were reviewed by the commission in terms of a monthly payment because the employer’s records did not provide weekly figures.
According to the employer’s monthly records, Webster was paid in excess of the compensation rate for the months of April, May and July 1990. Full credit was given by the commission for those months and no further compensation was found to be owing. However, in the months of June and August 1990, the employer only paid $46.00 and $23.97 respectively, amounts which fell short of the amount awarded. Accordingly, the commission found that full compensation was due for the month of June and for the August 1, 1990 through August 23, 1990 time frame. A credit was given for the $46.00 for the month of June and for the $23.97 for the August 1, 1990 through August 23, 1990 period.
The findings of fact made by the commission are binding upon us when supported by credible evidence. Dublin Garment Co. v.Jones, 2 Va. App. 165, 167, 342 S.E.2d 638, 638 (1986).
This Court held in Allegheny Airlines v. Merillat, 14 Va. 341, 345, 416 S.E.2d 467, 470 (1992), that Code § 65.1-54 (now Code § 65.2-500) requires the employer to compensate a totally incapacitated employee at a “weekly compensation rate.” InMerillat, this Court approved of the commission’s award of temporary total benefits for periods of one day so long as it was calculated as an appropriate fraction of the weekly compensation rate.
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Accordingly, the commission’s finding that the $8013.54 should not be averaged over the period of disability, but rather that the injury benefits paid should be compared to the amount of monthly compensation due under the award, is supported by our decision in Allegheny Airlines v. Merillat, by the requirements of Code § 65.2-500, and by the commission’s decision inHarrelson v. Amoco. Absent records indicating weekly figures for the amounts paid by the employer, it was appropriate for the commission to use the monthly figures provided by the employer. We agree with the full commission’s statement that, “payments should be made pursuant to its awards on an orderly basis rather than a claimant having periods of incapacity during which either limited benefits or no benefits are being paid. Such payments by the employer are not made pursuant to an award.”
For the reasons stated, we affirm the commission’s decision.
Affirmed.
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