## Facts

- Thomas A. Somers, a carpenter, injured his back on March 26, 1982, after working for John Driggs Company, Inc. for about four weeks.
- The workers’ compensation carrier accepted the injury as compensable and requested Somers’s 1981 W-2, which reflected wages from a different employer (G & C Construction Corporation), where Somers worked about ten months in 1981 earning $15,982.95.
- The carrier calculated Somers’s average weekly wage as $307.36 by dividing the 1981 wages by 52 weeks, then prepared a Memorandum of Agreement using that figure.
- Somers did not participate in the wage calculation; while incapacitated and not receiving compensation, he signed the agreement, which the Industrial Commission approved.
- About eight months later, Somers sought a hearing to increase the average weekly wage to conform to the statutory method.
- A deputy commissioner modified the wage figure upward using the statutory comparator method (based on wages of a person of similar grade and character in the same class of employment and locality during the prior 52 weeks), increasing compensation; the full Commission affirmed.

## Issues

1. Whether the Industrial Commission may amend the average weekly wage stated in a previously approved compensation agreement when the wage computation conflicts with the Workers’ Compensation Act, absent fraud or mutual mistake of fact.

## Decision

- The Supreme Court of Virginia affirmed the Commission’s modified award.
- The Court held the Commission had authority to amend the agreement because the carrier’s wage calculation was contrary to the governing statute and constituted an imposition on both the claimant and the Commission.
- The Court rejected the employer/carrier’s argument that modification required proof of fraud or mutual mistake.

## Legal Principles

- Average weekly wage must be computed using the method required by statute, generally tied to wages from the employment at the time of injury.
- When the employee has worked only a short time in the employment where the injury occurred, the statute authorizes use of wages earned by a comparable worker of the same grade and character in the same class of employment and locality during the relevant 52-week period.
- The Industrial Commission may reopen or modify an approved agreement or award for “imposition,” a ground distinct from fraud or mutual mistake, where a non-statutory calculation has been accepted and results in compensation inconsistent with the Act.
- While agreements are encouraged for prompt payment, the Commission retains supervisory authority to ensure awards conform to statutory requirements and may correct agreements that conflict with the statute.

## Conclusion

The court upheld the Commission’s power to increase an agreed average weekly wage when the carrier used a non-statutory formula that reduced compensation, treating the statutory violation as an imposition warranting modification even without fraud or mutual mistake.


John Driggs Co. v. Somers, 228 Va. 729, 324 S.E.2d 694 (1985)