Dane Brown, t/a, etc v. Dane B Brown

577 S.E.2d 543, 40 Va. App. 79, 2003 Va. App. LEXIS 121
CourtCourt of Appeals of Virginia
DecidedMarch 11, 2003
Docket1598022
StatusPublished

This text of 577 S.E.2d 543 (Dane Brown, t/a, etc v. Dane B Brown) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dane Brown, t/a, etc v. Dane B Brown, 577 S.E.2d 543, 40 Va. App. 79, 2003 Va. App. LEXIS 121 (Va. Ct. App. 2003).

Opinion

BENTON, Judge.

The sole issue raised by this appeal is whether the commission erred by calculating an average weekly wage using the sole proprietor’s profit and loss statements for the fifty-two weeks immediately preceding the injury rather than Schedule C from the sole proprietor’s prior year’s tax return. We hold that the commission did not err, and we affirm the award.

I.

Dane Brown filed an application for benefits alleging an injury by accident. At the evidentiary hearing, Brown testified that he is a sole proprietor doing business as Dane Brown Electrical and has elected coverage under the Act. In his business, Brown performs standard electrical contracting services; he sells and installs stand-by automatic generators; and he provides estimates for electrical generators to his clients and to other electrical contractors’ clients. On April 9, 2001, Brown visited the office of an electrical contractor and obtained the name of a customer who needed an estimate for a generator. Brown was en route to see that customer when a vehicle hit the rear of his automobile. Brown sustained neck and back injuries and received emergency treatment. He has not been released for employment.

*82 Brown testified that he had cervical spine surgery on February 5, 2001 that was unrelated to this claim. Prior to the February surgery, Brown was in pain and could not perform the duties of his job as well as normal, but he continued to work because he “had to do it, ... had to make a living.” After the February surgery, Brown did not work for approximately eight weeks. Before the accident on April 9, 2001, however, Brown had been released to return to his employment and had been working two weeks.

Brown’s wife testified by deposition that the business operates from an office in their home. Brown’s wife is not an employee of the business; she is, however, its bookkeeper and prepares the taxes for the business. Brown’s wife testified that she regularly uses a computer-based accounting program when she writes checks, pays bills, makes invoices, and does other accounting functions. When she prepares the income tax returns for the business, she uses the computer-based accounting program and a computer-based income tax preparation program; she “plug[s] what’s in [the] Quicken [accounting program] into the Turbo Tax [program] and it does the taxes.”

Brown’s wife testified that Schedule C from the business’s income tax returns for the year 2000 showed gross receipts of $186,820 and a net profit of $4,174. That tax period ended December 31, 2000, four months before Brown’s injury. At the request of Brown’s attorney, she used the computer programs to prepare profit and loss statements for the fifty-two weeks preceding Brown’s injury. Brown’s wife prepared two profit and loss statements — one for the electrical contracting work and another for the generator estimates and sales aspect of the business. The statements showed gross receipts of $231,714 between April 8, 2000 and April 8, 2001 and a net income of $35,996.27 for this same period. A substantial portion of the net income was attributable to the generator aspect of the business.

The deputy commissioner ruled that Brown proved he suffered a compensable injury by accident and that he has been *83 totally disabled since the day of the accident. In determining Brown’s average weekly wage, the deputy commissioner found that the tax return was not the most accurate account of Brown’s net earnings for the statutory period. The deputy commissioner noted the significant difference between the net profits reported on Schedule C for the year 2000 and reported on the profit and loss statements. The deputy commissioner found, however, that in preparing those documents Brown’s wife had, in each instance, “merely taken the database which she kept on a contemporaneous basis using the computer software and used the software to produce these figures including the tax returns.” In addition, the deputy commissioner found that because the figures were “essentially computer generated,” Brown’s wife did not artificially change the figures to enhance Brown’s claim. The deputy commissioner credited her explanation that the net profit shown on Schedule C was lower than the actual profit, in part, because Schedule C required her to use a mileage deduction for business mileage, as opposed to actual mileage, and because it included an allowance for the business use of the home. In view of that testimony, the deputy commissioner found that the net profit shown on the profit and loss statements should be reduced by the home office expenses and used the prior year’s calculation of the home office expenses to reduce the net profit shown on the profit and loss statements. The deputy commissioner found that Brown had net earnings of $82,586.27 from his business for the fifty-two weeks preceding the accident and determined that Brown’s pre-injury average weekly wage was $626.66.

Upon review, the commission affirmed these findings and specifically noted that the Schedule C covered a different fifty-two week period than the profit and loss statements. The commission found that using Schedule C as the basis for computing the average weekly wage would deprive Brown of the benefit of the increase in his earnings from the business through April 9, 2001.

*84 II.

The employer and the insurer contend the commission relied upon an incorrect source in computing Brown’s average weekly wage. They argue that “case law and the evidence in this matter required the commission to accept the Schedule C from Brown’s 2000 tax return.” We disagree.

In pertinent part, Code § 65.2-101 defines “average weekly wage” as follows:

l.a. The earnings of the injured employee in the employment in which he was working at the time of the injury during the period of fifty-two weeks immediately preceding the date of the injury, divided by fifty-two....
b. When for exceptional reasons the foregoing would be unfair either to the employer or employee, such other method of computing average weekly wages may be resorted to as will most nearly approximate the amount which the injured employee would be earning were it not for the injury.

The commission must be “guided by [this] statute in determining average weekly wage.” Dominion Assocs. Group, Inc. v. Queen, 17 Va.App. 764, 766, 441 S.E.2d 45, 46 (1994).

“The reason for calculating the average weekly wage is to approximate the economic loss suffered by an employee ... when there is a loss of earning capacity because of a work related injury.” Bosworth v. 7-Up Distrib. Co., 4 Va.App. 161, 163, 355 S.E.2d 339, 340 (1987). The commission’s duty is “to make the best possible estimate of future impairments of earning 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).

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Smith v. Robert W. Smith
527 S.E.2d 463 (Court of Appeals of Virginia, 2000)
Meredith Construct. Co v. John Alan Holcombe
466 S.E.2d 108 (Court of Appeals of Virginia, 1996)
Dominion Associates Group, Inc. v. Queen
441 S.E.2d 45 (Court of Appeals of Virginia, 1994)
Bosworth v. 7-Up Distributing Co.
355 S.E.2d 339 (Court of Appeals of Virginia, 1987)
Pilot Freight Carriers, Inc. v. Reeves
339 S.E.2d 570 (Court of Appeals of Virginia, 1986)

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Bluebook (online)
577 S.E.2d 543, 40 Va. App. 79, 2003 Va. App. LEXIS 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dane-brown-ta-etc-v-dane-b-brown-vactapp-2003.