John Driggs Co., Inc. v. Somers

On March 26, 1982, Thomas Somers (plaintiff) was injured during his employment with John Driggs Company, Inc. (Driggs) (defendant). Somers had been employed by Driggs for four weeks at the time of his injury. In 1981 Somers had been employed by G & C Construction Corporation (G & C). Somers filed for workers’-compensation benefits. Driggs’s carrier (defendant) agreed that the claim was compensable and requested Somers’s 1981 W-2 Wage and Tax Statement. Somers provided the 1981 statement. However, the statement reflected his employment at G & C, not Driggs. The carrier used the 1981 statement to calculate the average weekly wage for Somers’s employment with Driggs and determined Somers was entitled to weekly benefits of $307.36 for the 1982 injury, an amount lower than if statutory methods had been used. The carrier included the amount in an agreement presented to Somers. Although Somers was incapacitated and had not received any payments, he signed the agreement. Eight months later, Somers requested a hearing with the Virginia Industrial Commission (the commission) to amend the amount. The deputy commissioner increased the amount of compensation based on the average weekly amount that was being earned by a person of the same grade and character employed in the same class of employment in the same locality or community during the 52 weeks prior to the injury. The full commission affirmed the award. Driggs and the carrier appealed, arguing that there was no basis to modify the agreement.