COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Fitzpatrick and Senior Judge Duff Argued at Alexandria, Virginia
COUNTY OF FREDERICK FIRE AND RESCUE AND VIRGINIA MUNICIPAL GROUP SELF-INSURED ASSOCIATION
v. Record No. 1521-94-4 OPINION BY CHIEF JUDGE NORMAN K. MOON ANNMARIE G. DODSON JUNE 6, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION Susan A. Evans (Siciliano, Ellis, Dyer & Boccarosse, on brief), for appellants.
J. Sloan Kuykendall III (Kuykendall, Johnston, Coleman & Kuykendall, on brief), for appellee.
County of Frederick Fire and Rescue and its insurer
("employer") contend that the Workers' Compensation Commission
erred in finding (1) that Annmarie G. Dodson's (claimant) two
employments were substantially similar for the purposes of
calculating her average weekly wage; and (2) that she was
entitled to further compensation because she had not been
released to return to work for employer. We disagree and affirm
the commission's decision.
Claimant was employed part-time as a "fire-medic" for the
Frederick County Fire and Rescue Department. Concurrently,
claimant also held a full-time position as a cardiac technician
and emergency room nurse with the Prince William Hospital. On
June 23, 1993, claimant sustained a compensable injury to her
- 1 - right knee while fighting a brush fire. She was deemed totally
disabled from both employments from June 24, 1993, through August
19, 1993. On August 20, 1993, claimant returned to work at
Prince William Hospital with a light duty restriction. Her
doctor gave her a full-duty release to return to the hospital on
September 17, 1993, but did not give her a full-duty release to
return to her job at Frederick County Fire and Rescue.
Claimant's inability to return to her work as a fire-medic formed
the basis for her claim for temporary partial disability
benefits. In determining the amount of benefits claimant would be
awarded, the commission ruled that her two employments were
substantially similar for the purpose of calculating claimant's
average weekly wage. The commission based its ruling, in large
part, on a letter from Thomas W. Owens, Director of Frederick
County Fire and Rescue, which described the duties of the fire-
medics who worked for employer. The letter explained that the
fire-medics are required to perform both firefighting and
emergency medical duties. The department actively recruits
cardiac technicians, paramedics, and emergency nurses to serve as
part-time fire-medics to ensure that it has a consistent advanced
life support service. Response to medical emergencies accounts
for seventy-three percent of the department's response activity.
The letter concluded that claimant was also required to perform
firefighting duties, but emergency medical services was her
primary mission as a part-time fire-medic.
- 2 - I. Average Weekly Wage
On appeal, employer first argues that the commission's
finding that claimant's two employments were substantially
similar under the Virginia Workers' Compensation Act is not
supported by the evidence. Essentially, employer would have us
hold that because some of claimant's duties with the fire and
rescue department, such as fighting fires and performing
maintenance on the firefighting equipment, were not required for
her work with the hospital, her two employments cannot be said to
be substantially similar. We disagree. Under Virginia law, workers' compensation benefits are
computed on the basis of the employee's "average weekly wage."
Code § 65.2-101. Virginia follows the majority rule that when an
employee is injured on one job while in concurrent employment,
the average weekly wage compensated is based on the combined
earnings of both jobs if, but only if, the employments are
related or similar. See First Virginia Banks, Inc. v McNeil, 8
Va. App. 342, 343, 381 S.E.2d 357, 358 (1989)(where claimant is
employed by more than one employer, claimant's combined earnings
are used to arrive at the average weekly wage only if the
employments are "substantially similar").
In the past, the commission has held that in applying the
similar employment rule, it "must . . . recognize that there are
no two jobs which are exactly alike," but that "the entire
spectrum of duties should be considered." Hall v. American
- 3 - Janitor Service, 61 OIC 172, 175 (1982). The commission's
statement in Hall, which is cited by both the employer and
claimant, is open to conflicting interpretations. The employer
argues that because some of the claimant's duties as a fire-
paramedic exceeded the scope of her employment as an emergency
medical technician, the employments were not substantially
similar. Claimant argues, on the other hand, that because all of
her duties and skills as an emergency technician were utilized in
her job as a firefighter-paramedic, the employments would be
substantially similar. Other jurisdictions have held that if the employment is of
the same class or kind, the similar or related employment rule
may apply to work done during irregular, off hours. See
generally Arthur Larson, The Law of Workmen's Compensation,
§ 60.31(b) (1994). For example, where a workman was regularly
employed as an electric welder for one employer and repaired
gasoline tanks for another employer on Saturday afternoons and
Sundays as needed, his compensation for injury during the off
hours job was calculated by including earnings from the full time
job because both were electric welding jobs. See Sprout & Davis,
Inc. v. Toren, 118 Ind. App. 384, 78 N.E.2d 437 (1948). In
another case, a high school dietician, injured while supervising
a church dinner, was allowed to combine earnings from both
activities. See McDowell v. Flatbush Congressional Church, 277
N.Y. 536, 13 N.E.2d 462 (1938).
In Smith v. James, 12 A.D.2d 833, 209 N.Y.S.2d 622 (1961), - 4 - the Appellate Division affirmed an award to an employee who was
injured during employment as a maid for one day a week and who
was additionally employed five days a week at a beauty shop. In
holding the two employments were similar, the Court noted that in
both employments the claimant testified that she was a maid and
that she was not employed by the beauty parlor as a beautician.
Id. at 834, 209 N.Y.S.2d at 624. While the claimant's duties at
the parlor included waiting on customers, putting customers under
the dryers, and serving lunches, her principal work was cleaning. Id.
In cases like the present one, we believe that the general
class of employment analysis in the above-cases is instructive
and helps to narrow the focus of comparison of the two
employments. A straight quantitative approach, weighing the like
duties against the distinct duties of two employments to reach a
decision, will not always be determinative of the issue. Where,
in cases like this one, all of a claimant's duties and skills in
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Fitzpatrick and Senior Judge Duff Argued at Alexandria, Virginia
COUNTY OF FREDERICK FIRE AND RESCUE AND VIRGINIA MUNICIPAL GROUP SELF-INSURED ASSOCIATION
v. Record No. 1521-94-4 OPINION BY CHIEF JUDGE NORMAN K. MOON ANNMARIE G. DODSON JUNE 6, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION Susan A. Evans (Siciliano, Ellis, Dyer & Boccarosse, on brief), for appellants.
J. Sloan Kuykendall III (Kuykendall, Johnston, Coleman & Kuykendall, on brief), for appellee.
County of Frederick Fire and Rescue and its insurer
("employer") contend that the Workers' Compensation Commission
erred in finding (1) that Annmarie G. Dodson's (claimant) two
employments were substantially similar for the purposes of
calculating her average weekly wage; and (2) that she was
entitled to further compensation because she had not been
released to return to work for employer. We disagree and affirm
the commission's decision.
Claimant was employed part-time as a "fire-medic" for the
Frederick County Fire and Rescue Department. Concurrently,
claimant also held a full-time position as a cardiac technician
and emergency room nurse with the Prince William Hospital. On
June 23, 1993, claimant sustained a compensable injury to her
- 1 - right knee while fighting a brush fire. She was deemed totally
disabled from both employments from June 24, 1993, through August
19, 1993. On August 20, 1993, claimant returned to work at
Prince William Hospital with a light duty restriction. Her
doctor gave her a full-duty release to return to the hospital on
September 17, 1993, but did not give her a full-duty release to
return to her job at Frederick County Fire and Rescue.
Claimant's inability to return to her work as a fire-medic formed
the basis for her claim for temporary partial disability
benefits. In determining the amount of benefits claimant would be
awarded, the commission ruled that her two employments were
substantially similar for the purpose of calculating claimant's
average weekly wage. The commission based its ruling, in large
part, on a letter from Thomas W. Owens, Director of Frederick
County Fire and Rescue, which described the duties of the fire-
medics who worked for employer. The letter explained that the
fire-medics are required to perform both firefighting and
emergency medical duties. The department actively recruits
cardiac technicians, paramedics, and emergency nurses to serve as
part-time fire-medics to ensure that it has a consistent advanced
life support service. Response to medical emergencies accounts
for seventy-three percent of the department's response activity.
The letter concluded that claimant was also required to perform
firefighting duties, but emergency medical services was her
primary mission as a part-time fire-medic.
- 2 - I. Average Weekly Wage
On appeal, employer first argues that the commission's
finding that claimant's two employments were substantially
similar under the Virginia Workers' Compensation Act is not
supported by the evidence. Essentially, employer would have us
hold that because some of claimant's duties with the fire and
rescue department, such as fighting fires and performing
maintenance on the firefighting equipment, were not required for
her work with the hospital, her two employments cannot be said to
be substantially similar. We disagree. Under Virginia law, workers' compensation benefits are
computed on the basis of the employee's "average weekly wage."
Code § 65.2-101. Virginia follows the majority rule that when an
employee is injured on one job while in concurrent employment,
the average weekly wage compensated is based on the combined
earnings of both jobs if, but only if, the employments are
related or similar. See First Virginia Banks, Inc. v McNeil, 8
Va. App. 342, 343, 381 S.E.2d 357, 358 (1989)(where claimant is
employed by more than one employer, claimant's combined earnings
are used to arrive at the average weekly wage only if the
employments are "substantially similar").
In the past, the commission has held that in applying the
similar employment rule, it "must . . . recognize that there are
no two jobs which are exactly alike," but that "the entire
spectrum of duties should be considered." Hall v. American
- 3 - Janitor Service, 61 OIC 172, 175 (1982). The commission's
statement in Hall, which is cited by both the employer and
claimant, is open to conflicting interpretations. The employer
argues that because some of the claimant's duties as a fire-
paramedic exceeded the scope of her employment as an emergency
medical technician, the employments were not substantially
similar. Claimant argues, on the other hand, that because all of
her duties and skills as an emergency technician were utilized in
her job as a firefighter-paramedic, the employments would be
substantially similar. Other jurisdictions have held that if the employment is of
the same class or kind, the similar or related employment rule
may apply to work done during irregular, off hours. See
generally Arthur Larson, The Law of Workmen's Compensation,
§ 60.31(b) (1994). For example, where a workman was regularly
employed as an electric welder for one employer and repaired
gasoline tanks for another employer on Saturday afternoons and
Sundays as needed, his compensation for injury during the off
hours job was calculated by including earnings from the full time
job because both were electric welding jobs. See Sprout & Davis,
Inc. v. Toren, 118 Ind. App. 384, 78 N.E.2d 437 (1948). In
another case, a high school dietician, injured while supervising
a church dinner, was allowed to combine earnings from both
activities. See McDowell v. Flatbush Congressional Church, 277
N.Y. 536, 13 N.E.2d 462 (1938).
In Smith v. James, 12 A.D.2d 833, 209 N.Y.S.2d 622 (1961), - 4 - the Appellate Division affirmed an award to an employee who was
injured during employment as a maid for one day a week and who
was additionally employed five days a week at a beauty shop. In
holding the two employments were similar, the Court noted that in
both employments the claimant testified that she was a maid and
that she was not employed by the beauty parlor as a beautician.
Id. at 834, 209 N.Y.S.2d at 624. While the claimant's duties at
the parlor included waiting on customers, putting customers under
the dryers, and serving lunches, her principal work was cleaning. Id.
In cases like the present one, we believe that the general
class of employment analysis in the above-cases is instructive
and helps to narrow the focus of comparison of the two
employments. A straight quantitative approach, weighing the like
duties against the distinct duties of two employments to reach a
decision, will not always be determinative of the issue. Where,
in cases like this one, all of a claimant's duties and skills in
one job are utilized in the other job, which has a wider scope of
employment, the general class of employment approach, focusing on
the primary mission of an employee in both jobs, provides a more
rational analysis for determining whether two employments are so
related as to conclude they are substantially similar.
In this case, Mr. Owens's letter provided the most accurate
description of the claimant's duties and responsibilities for
employer and revealed that claimant's primary mission for
employer, as it was for the hospital, was emergency medical - 5 - service. Owens's letter established that claimant was recruited
upon her experience as a cardiac technician/paramedic and as an
emergency room nurse. Owens stated that claimant's work for the
hospital was directly comparable to the duties she performed
while staffing the medic ambulance in Frederick County. While
claimant was required to perform firefighting duties, Owens
stated that emergency medical services was the primary mission of
the employer's fire and rescue personnel. Thus, not only were
all of the claimant's skills as an emergency medical technician
utilized in her job as a firefighter-paramedic, but both
employments were of the same general class, i.e.,
emergency/rescue. The letter provides credible evidence to
support the commission's decision that claimant's job for
employer was substantially similar to her job at the hospital.
Employer relies upon its written job description for a
"Firefighter I" to support its argument that the employments were
not similar. However, Owens specifically stated that this job
description was outdated and failed to reflect the emergency
medical services provided by employees, such as claimant. Based
upon the evidence, the commission, in its role as fact finder,
was entitled to find that Owens's letter minimized the relevance
of the written job description. II. Return to Work
Employer's second argument, which is related to its first,
is that even if the two employments are substantially similar,
the commission lacked sufficient evidence and a legal basis to
- 6 - allow the claimant to claim further entitlement to benefits for
her job as a fire-medic after her full duty release to her job
with the hospital on September 16, 1993. We hold that the
evidence supports the commission's determination that claimant is
entitled to temporary partial benefits after September 16, 1993.
On September 16, 1993, Dr. Thomas Schulz, claimant's
treating physician, released her to return to full duty at the
hospital. On that same date, he released her to return to full
duty with employer, except that she was restricted from
firefighting. Dr. Schulz's records provide credible evidence to
support the commission's finding that claimant was entitled to
temporary partial disability commencing September 16, 1993. Employer contends that if, as the commission found, the
jobs were substantially similar, then a release to return to one
job should have released claimant to return to the other. We
find no merit in this argument and no case law to support it.
The word similar "is generally interpreted to mean that one thing
has a resemblance in many respects, nearly corresponds, is
somewhat like, or has a general likeness to some other thing but
is not identical in form and substance. . . ." Blacks Law
Dictionary 1383 (6th ed. 1990). By definition, employer's
argument must fail. Just because claimant can fully perform her
duties in one job does not mean that she should be able to
perform all her duties in the other.
Dr. Schulz merely restricted claimant from performing one of
the duties, firefighting, involved in her job with employer.
- 7 - This limitation does not require a finding that the jobs are
dissimilar, nor does it necessitate a finding that claimant was
not entitled to temporary partial disability benefits. While it
is true, as employer contends, that claimant has been able to
return to her work at the hospital but still cannot fight fires,
this could be true of any number of jobs that are similar and of
the same general class but in which one requires extra physical
qualifications that the other does not. Accordingly, the award is affirmed.
Affirmed.
- 8 -