Newport News Shipbuilding and Dry Dock v. Fawcett ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
NEWPORT NEWS SHIPBUILDING
AND DRY DOCK COMPANY
MEMORANDUM OPINION *
v. Record No. 2410-98-1 PER CURIAM
CURTIS L. FAWCETT
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Benjamin M. Mason; Mason & Mason, P.C., on
brief), for appellant.
(Gregory E. Camden; Montagna, Klein & Camden,
L.L.P., on brief), for appellee.
Newport News Shipbuilding and Dry Dock Company contends that
the Workers’ Compensation Commission erred in finding that
Curtis L. Fawcett proved that he was entitled to temporary partial
disability benefits for the period September 3, 1996 through July
12, 1997, for a loss of overtime he incurred after he returned to
selective employment offered to him by employer. Upon reviewing
the record and the briefs of the parties, we conclude that this
appeal is without merit. Accordingly, we summarily affirm the
commission’s decision. See Rule 5A:27.
This Court’s recent decisions in Carr v. Virginia Electric &
Power Co., 25 Va. App. 306, 487 S.E.2d 878 (1997), and
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Consolidated Stores Corp. v. Graham, 25 Va. App. 133, 486 S.E.2d
576 (1997), control the issue whether the partially disabled
employee is entitled to benefits because his selective employment
has not included overtime wages as did his pre-injury work. When
an employee who has not been released to his pre-injury duties has
selective employment with the employer which does not include
overtime that was previously part of the pre-injury job, "the
availability of alternative [overtime] work [does] not affect the
[employee's] right to compensation due to an impaired capacity to
perform his pre-injury duties." Graham, 25 Va. App. at 137, 486
S.E.2d at 578. The underlying theory is that the partial
incapacity has caused the employee to earn a lesser post-injury
wage than his pre-injury wage. Thus, if an employee who has not
recovered his "pre-injury capacity" suffers a wage loss in the
selective employment because overtime work, which was previously
available, enabled the employee to earn a particular wage and the
employee is not able to earn that same wage because overtime is
unavailable in the selective employment, the employee is entitled
to temporary partial disability benefits to compensate for the
wage loss. See id. at 136-37, 486 S.E.2d at 578; Carr, 25 Va.
App. at 312, 487 S.E.2d at 881.
The uncontradicted evidence in this case proved that Fawcett
had not been released to perform the full-duties of his pre-injury
job. After Fawcett returned to selective employment offered by
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employer, he was no longer afforded overtime hours. Fawcett’s
average weekly wage earned prior to his injury was greater than
the average weekly wage he earned in his selective employment
because of the lack of available overtime in that selective
employment. Thus, he suffered a post-injury wage loss. The fact
that employer assigned Fawcett to selective employment where
overtime work was not generally needed or the fact that less
overtime was generally available due to general economic
conditions did "not diminish [Fawcett’s] right to compensation, as
his work-related injury prevent[ed] him from performing [his
pre-injury duties], and employer remain[ed] liable for the wage
loss suffered by [him]." Carr, 25 Va. App. at 312, 487 S.E.2d at
881.
For these reasons, we affirm the commission’s decision.
Affirmed.
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