Power and Alarm Comm.et al v. Michael D. Byerly ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Agee
Argued at Alexandria, Virginia
POWER AND ALARM COMMUNICATIONS SYSTEM and
MONTGOMERY MUTUAL INSURANCE COMPANY
MEMORANDUM OPINION * BY
v. Record No. 2783-00-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JUNE 19, 2001
MICHAEL D. BYERLY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
James Richard Ryan, Jr. (Pamela A. Kultgen;
Siciliano, Ellis, Dyer & Boccarosse, on
briefs), for appellants.
William A. Musto (Koonz, McKenney, Johnson,
DePaolis & Lightfoot, on brief), for
appellee.
Power and Alarm Communications System and its insurer
("employer") contend that the Workers' Compensation Commission
("commission") erred in awarding temporary partial disability
benefits to Michael D. Byerly ("claimant"). 1 Finding no error,
we affirm.
I.
At the time of the accident, claimant had been employed as
an electrician service truck driver for approximately two years.
* Pursuant to Code § 17.1-413 this opinion is not
designated for publication.
1
Employer states in its question presented that claimant's
temporary total disability claim was at issue. However, the
commission found that the employer did not appeal this
determination of the deputy commissioner.
At hearing, the parties stipulated that claimant: (1) had a
pre-injury average weekly wage of $1381.78; (2) sustained a
compensable workers' compensation injury on or about March 30,
1999; (3) injured his neck, lower back and right shoulder in the
accident; and (4) had an initial period of total disability from
March 31 through July 6, 1999.
Claimant filed a claim for temporary total benefits for the
period March 30 through July 20, 1999 and temporary partial
benefits for the period July 21, 1999 to the present and
continuing. Employer defended the claim on the ground that
claimant was able to return to full-duty work on August 5, 1999
based on a medical evaluation by Dr. David Dorin or, in the
alternative, claimant failed to market his residual capacity
and, therefore, was not entitled to temporary partial benefits.
The deputy commissioner found claimant totally disabled from
March 30 through July 20, 1999 and awarded benefits. He also
determined that after that date, claimant was capable of
light-duty work and that claimant failed to establish lost
earnings as a result of his light-duty restrictions. On appeal,
the full commission found (1) there was no evidence claimant was
fully able to perform the duties of his pre-injury employment,
and (2) his earnings were less than his pre-injury wage. 2 The
2
They also found claimant failed to market his residual
capacity for the period July 21 through August 27, 1999.
- 2 -
commission opined "While Dr. Tham [claimant's treating
physician] has not restricted the claimant's work hours, he has
restricted his work capacity. We are not persuaded that
employer is relieved of its duty to compensate the claimant who
remains partially disabled." Employer appeals the commission's
decision to award temporary partial disability benefits. 3
II.
Employer first contends no credible evidence supports
commission's finding that claimant was unable to return to his
pre-injury employment.
"On appeal, we view the evidence in the light most
favorable to the claimant, who prevailed before the commission."
Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d
335, 340 (1998) (citations omitted). "A question raised by
conflicting medical opinion is a question of fact." WLR Foods
v. Cardosa, 26 Va. App. 220, 230, 494 S.E.2d 147, 152 (1997).
"'Decisions of the commission as to questions of fact, if
supported by credible evidence, are conclusive and binding on
this Court.'" Id. (quoting Manassas Ice & Fuel Co. v. Farrar,
3
Code § 65.2-502 provides in pertinent part:
when the incapacity for work resulting from
the injury is partial, the employer shall
pay . . . weekly compensation . . . equal to
66 2/3 percent of the difference between his
average weekly wages before the injury and
the average weekly wages which he is able to
earn thereafter . . . .
- 3 -
13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991)). "'The fact
that there is contrary evidence in the record is of no
consequence.'" Id. (quoting Wagner Enters., Inc. v. Brooks, 12
Va. App. 890, 894, 407 S.E.2d 32, 35 (1991)).
On July 19, 1999, Dr. William Tham, claimant's treating
physician, provided a doctor's certificate stating that claimant
could return to work light duty on July 21, 1999. Dr. Tham
stated "[r]estrict work on ladders or scaffolds – no lifting >
25 lbs." In his report of November 4, 1999, Dr. Tham increased
the amount of weight claimant could lift to 40 lbs. and
restricted pulling motions. In his response to a questionnaire
prepared by claimant's counsel, Dr. Tham stated claimant could
return to work "regular hours" but continued his light-duty
restrictions.
While claimant worked in a supervisory position both before
and after his injuries, claimant testified that his injury and
its residual effects had curtailed his job activities.
Pre-injury, he was able to manipulate a 500-lb. spool of wire
and work constantly on scaffolds and ladders. His new position
with Consolidated Engineering Services (CES) was also
supervisory in nature but he could not "lift, hoist, or move
ladders as he did before his injury." He also tried to work a
40-hour week but averaged 24 to 32 hours due to medical
appointments. Employer presented no evidence to contradict
- 4 -
claimant's description of the nature of his pre-injury and
post-injury jobs.
"The threshold test for compensability is whether the
employee is 'able to fully perform the duties of his
pre[-]injury employment.'" Celanese Fibers Co. v. Johnson, 229
Va. 117, 120, 326 S.E.2d 687, 690 (1985) (quoting Sky Chefs,
Inc. v. Rogers, 222 Va. 800, 805, 284 S.E.2d 605, 607 (1981)).
"[An] employer is relieved of its duty to compensate the
claimant only if it offers the claimant employment in his or her
"pre-injury capacity" and the claimant has been released to
perform the work." Carr v. Virginia Elec. & Power Co., 25 Va.
App. 306, 311-12, 487 S.E.2d 878, 881 (1997).
Credible evidence supports the commission's finding that
claimant had continuing physical limitations as a result of his
injury and was unable to return to his pre-injury position.
III.
Employer next contends that claimant "self-limited" his
hours and refused to work overtime, thus, causing his own wage
loss. Employer argues that because there was no medical
limitation on claimant's hours, he could recoup any salary
differential through overtime. Employer concedes that no
evidence in the record established overtime was available. The
unrebutted evidence is claimant's pre-injury base rate wage not
including overtime was $21.96 per hour. His base rate wage not
including overtime post-injury with employer was $18.30 per
- 5 -
hour. His base rate wage with Kelly Electrical Services and CES
was $17.55 per hour without overtime. Claimant has not earned
his pre-injury average weekly wage since the date of injury.
Employer also argues that by limiting his work hours due to
"flare-ups" and failing to work overtime, claimant limited his
wages. We disagree.
Employer contends that the rationale of Carr does not apply
to the instant case because the record there affirmatively
proved that no overtime was available to the employee in his
light-duty capacity. Here, the record was silent as to the
availability of overtime. We find this argument to be without
merit.
We hold claimant is entitled to temporary partial
disability benefits regardless of the availability of overtime
because claimant was not released to work in his pre-injury
position and his post-injury earnings did not equal or exceed
his pre-injury income. For the foregoing reasons, the decision
of the commission is affirmed.
Affirmed.
- 6 -