Carmel Green Houses v. Mohammad Hammoudeh

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Elder and Fitzpatrick

CARMEL GREEN HOUSES, INC. and FLORISTS MUTUAL INSURANCE COMPANY MEMORANDUM OPINION * v. Record No. 1260-97-4 PER CURIAM OCTOBER 14, 1997 MOHAMMAD HAMMOUDEH

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Alan D. Sundburg; Friedlander, Misler, Friedlander, Sloan & Herz, on brief), for appellants. (Lawrence J. Pascal; Ashcraft & Gerel, on brief), for appellee.

Carmel Green Houses, Inc. and its insurer (hereinafter

referred to as employer) contend that the Workers' Compensation

Commission (commission) erred in finding that Mohammad Hammoudeh

(claimant) proved that he earned a post-injury average weekly

wage of $250. Upon reviewing the record and the briefs of the

parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the commission's decision. Rule

5A:27.

Beginning in 1994, claimant became self-employed buying and

selling automobiles. Claimant testified that he earned

approximately $200 to $250 per week. Claimant produced a profit

and loss statement for the six-month period ending June 30, 1996.

Claimant's accountant generated the statement based upon * Pursuant to Code § 17-116.010 this opinion is not designated for publication. claimant's business records. Employer did not introduce evidence

to dispute claimant's testimony nor did employer request any

discovery with respect to claimant's average weekly wage.

Based upon this record, the commission awarded claimant

benefits based upon a $250 average weekly wage.

"It was the duty of the Commission to make the best possible

estimate of . . . impairments of earnings from the evidence

adduced at the hearing, and to determine the average weekly

wage . . . ." Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App.

435, 441, 339 S.E.2d 570, 573 (1986). "This is a question of

fact to be determined by the Commission which, if based on

credible evidence, will not be disturbed on appeal." Id. "Thus,

if credible evidence supports the commission's findings regarding

the claimant's average weekly wage, we must uphold those

findings." Chesapeake Bay Seafood House v. Clements, 14 Va. App.

143, 146, 415 S.E.2d 864, 866 (1992).

Claimant's unrebutted testimony, which was corroborated by

the profit and loss statement, constitutes credible evidence to

support the commission's findings. Therefore, we must uphold

those findings on appeal. Employer's contention that claimant

failed to meet his burden of proof because he did not produce

additional business records is without merit. Employer had every

opportunity to offer evidence to rebut claimant's testimony, but

failed to do so.

For these reasons, we affirm the commission's decision.

2 Affirmed.