Virginia Power v. Tim B. Brueser ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Baker and Elder
VIRGINIA POWER
MEMORANDUM OPINION *
v. Record No. 1667-97-4 PER CURIAM
DECEMBER 16, 1997
TIM B. BRUESER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Glenn S. Phelps; Midkiff & Hiner, on brief),
for appellant.
(Craig A. Brown; Ashcraft & Gerel, on brief),
for appellee.
Virginia Power (employer) contends that the Workers'
Compensation Commission erred in awarding temporary partial
disability benefits to Tim B. Brueser (claimant) based upon pay
for overtime hours that claimant was not offered when he returned
to light duty work with 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.
Two recent decisions control the issue of whether the
partially disabled claimant is entitled to benefits because his
light duty job has not included overtime wages as did his
pre-injury work. In Carr v. Virginia Electric & Power Co., 25
Va. App. 306, 487 S.E.2d 878 (1997), and Consolidated Stores
Corp. v. Graham, 25 Va. App. 133, 486 S.E.2d 576 (1997), we held
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
that when a claimant who has not been released to his pre-injury
duties is offered and accepts light duty work from 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 claimant's right to compensation due to an
impaired capacity to perform his pre-injury duties."
Consolidated Stores, 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 a claimant who has not recovered his "pre-injury
capacity" suffers a wage loss in the light duty position by
virtue of the fact that 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 light duty position, he is entitled to
temporary partial disability benefits to compensate for the wage
loss incurred. See Carr, 25 Va. App. at 312, 487 S.E.2d at 881;
Consolidated Stores, 25 Va. App. at 136-37, 486 S.E.2d at 578.
The uncontradicted evidence in this case proves that the
claimant has not been released to his pre-injury capacity as an
electric serviceman - first class. The evidence also proves that
claimant consistently accepted overtime hours that were offered
to him in his pre-injury employment. However, in his light duty
employment, he was not offered overtime hours, whereas other
employees in claimant's pre-injury job classification continued
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to receive overtime. Claimant's average weekly wage earned prior
to his injury was greater than the average weekly wage earned in
the light duty work because of the lack of available overtime in
the light duty work. Thus, he suffered a post-injury wage loss.
"[E]mployer's inability to predict the available overtime to the
[electric servicemen] during the period in question does not
diminish claimant's right to compensation, as his work-related
injury prevents him from performing [electric serviceman] duties,
and employer remains liable for the wage loss suffered by
claimant." 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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