Hampton Roads Admirals, et al. v Patrick Cavanagh

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Willis and Bray
Argued at Norfolk, Virginia
HAMPTON ROADS ADMIRALS
and
AETNA CASUALTY AND SURETY COMPANY 	MEMORANDUM OPINION* BY
JUDGE JERE M. H. WILLIS, JR.
v. 	Record No. 2128-94-1 	AUGUST 8, 1995
PATRICK CAVANAGH
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Kevin E. Mooney (Robert W. McFarland; Mark S.
Davis; McGuire, Woods, Battle & Boothe, on
briefs), for appellant.
Patrick Cavanagh, pro se.
The award of the commission is modified and affirmed.
1. 	The commission's holding that the question of maximum
medical recovery was not an issue in the claim is supported by
the record. 	While the employer protested what it termed an ex
parte determination of compensable disability, it expressly
acknowledged "that the time for requesting a review of such
determination has already passed." 	This supports the
commission's determination that the issue of compensability was
conceded.
2. 	We find no abuse of discretion in the commission's
determination that the proper measure of average weekly wage was
not the allowances paid temporarily during the try-out period,
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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but the average weekly wage of a player who made the team. 	The
parties agreed that this was the proper approach. 	The deputy
commissioner correctly determined that the average weekly wage
was $277.77, to which should be added a weekly housing allowance
of $46.15, making a total average weekly wage of $323.92. 	The
commission erred in adding to that figure a meal allowance of $18
per day ($126 per week). 	The uncontradicted evidence established
that the meal allowance was paid only during the try-out period,
as the alternative to a wage. 	It was not paid during the regular
season, once payment of a regular wage began.
This case is remanded to the commission for entry of an
award based upon an average weekly wage of $323.92.
Modified, affirmed and remanded.