Starbucks Coffee Company and American Zurich Insurance Company v. Kristin Shy , 61 Va. App. 229 ( 2012 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Alston and McCullough
PUBLISHED
Argued at Alexandria, Virginia
STARBUCKS COFFEE COMPANY AND
AMERICAN ZURICH INSURANCE COMPANY
OPINION BY
v. Record No. 2557-11-4 JUDGE ROSSIE D. ALSTON, JR.
DECEMBER 4, 2012
KRISTIN SHY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Andrew M. Alexander (Semmes, Bowen & Semmes, P.C., on
briefs), for appellants.
Craig A. Brown (Ashcraft & Gerel, LLP, on brief), for appellee.
Starbucks Coffee Company (Starbucks) appeals from an order of the Workers’
Compensation Commission (the commission) refusing to terminate an award of temporary total
disability benefits to Kristin Shy (claimant). On appeal, Starbucks contends: 1) the commission
erred in denying Starbucks’ allegation that claimant returned to work on January 26, 2010; 2) the
commission erred in denying Starbucks’ allegation that claimant returned to work on November
26, 2010; and 3) the commission erred in denying Starbucks’ allegation that claimant abandoned
the labor force on January 4, 2011. Finding no error, we affirm.
I. BACKGROUND
On appeal from the commission, we view the evidence in the light most favorable to
claimant, the party prevailing below. Tomes v. James City Fire, 39 Va. App. 424, 429-30, 573
S.E.2d 312, 315 (2002) (citing R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390
S.E.2d 788, 788 (1990)).
A. Claimant’s Injury and Award Order
So viewed, the evidence showed that claimant suffered an upper back injury on
December 8, 2009, during the course of her employment at Starbucks. The following day,
claimant was placed on a workers’ compensation leave of absence.
On January 26, 2010, claimant made an unsuccessful attempt to return to work for
Starbucks at the store where she worked prior to her injury. During this unsuccessful attempt at
returning to work, claimant performed what she described as “light duty work; mostly
cashiering.” Despite performing only light-duty work over an interrupted six-week basis,
claimant testified that her attempt to work a full shift caused her “extreme pain” and that she
“could not move around or move [her] arms.”
In March 2010, after this failed attempt at returning to work, claimant was referred to
Dr. Stephanie Clopp, who became claimant’s treating physician and advised her to discontinue
her work activity. Claimant worked her last day at Starbucks on March 8, 2010. On March 23,
2010, claimant was again placed on a workers’ compensation leave of absence.
On April 19, 2010, claimant filed a claim for workers’ compensation benefits and
requested a hearing with the commission. In her claim, claimant alleged injuries to her right
shoulder, neck, and back.
Prior to claimant’s hearing before the commission, Starbucks provided claimant with an
award agreement, providing for payment of temporary total disability benefits beginning on
December 8, 2009. Claimant accepted the award agreement, and the parties submitted the
agreement to the commission.
On July 27, 2010, the commission entered an award order, approving the award
agreement, as well as entering an award of medical benefits pursuant to Code § 65.2-603.
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Following entry of the award, Starbucks neither sought review of the award nor argued that it
should be modified or vacated. On August 26, 2010, the award order became final.
In November 2010, claimant applied for a job with the clothing retailer American Eagle.
Claimant began working for American Eagle on November 26, 2010, and completed twelve
hours of work over two shifts on nonconsecutive days before resigning in December 2010.
Following her resignation from American Eagle, claimant then enrolled in Blue Ridge
Community College as a full-time student on January 9, 2011.
B. Starbucks’ Applications for a Hearing
On December 3, 2010, Starbucks filed an application for a hearing before the
commission. Starbucks alleged that claimant’s return to her pre-injury work at Starbucks on
January 26, 2010, was a change in condition and sought the termination or suspension of
claimant’s outstanding award.
Starbucks filed a second application for a hearing before the commission on April 4,
2011, alleging that claimant’s return to light-duty work with American Eagle on November 26,
2010, constituted a change in condition and warranted termination or suspension of claimant’s
outstanding award.
On May 18, 2011, Starbucks again filed an application for a hearing before the
commission, claiming a change in condition based on claimant’s January 26, 2010 return to
light-duty work at Starbucks and requested the termination or suspension of claimant’s award.
One week later, on May 25, 2011, Starbucks filed its final application for a hearing
before the commission, alleging that claimant abandoned the labor force when she became a
full-time college student on January 4, 2011. In addition, Starbucks alleged that “claimant did
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not timely report [her enrollment in college] to the commission,” as required by Code
§ 65.2-712.
C. Deputy Commissioner Hearing
On June 3, 2011, a deputy commissioner held a hearing on Starbucks’ four consolidated
applications for hearing. During the hearing, claimant testified that after returning to work for
Starbucks on January 26, 2010, when she attempted to work a full shift, she suffered extreme
pain and experienced difficulty moving. Because her work exacerbated her pain, claimant
testified that she was unable to work a full week schedule. Claimant also testified that after she
stopped working for Starbucks in March 2010, she was not offered employment or job search
assistance by Starbucks.
Claimant also addressed her attempted return to work with American Eagle in November
2010. Claimant testified that when she applied to work for American Eagle, she was willing to
work forty hours per week. Moreover, claimant testified that she quit working at American
Eagle because she was not offered the hours she requested.
Additionally, claimant testified that she enrolled as a full-time student at Blue Ridge
Community College in January 2011. Since enrolling at Blue Ridge, claimant acknowledged
that she had not looked for work. However, claimant also testified that she had not refused any
assistance from Starbucks in finding employment because of her student status.
After reviewing the evidence and testimony offered during the June 3, 2011 hearing, the
deputy commissioner rejected each of Starbucks’ four applications. First, the deputy
commissioner found that by agreeing in June 2010 to entry of the award agreement with
knowledge of claimant’s brief and unsuccessful attempt to return to work in January 2010,
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Starbucks had waived and abandoned the allegations raised in its December 3, 2010 and May 18,
2011 applications.
Alternatively, the deputy commissioner concluded that Starbucks failed to carry its
burden of proving the allegations raised in the December 3, 2010 and May 18, 2011 applications.
Specifically, the deputy commissioner found that, upon return to work for Starbucks in January
2010, claimant’s “attendance was sporadic at best, and [credited her] testimony that she
continued to experience accident-related symptoms.”
Similarly, the deputy commissioner found that Starbucks failed to meet its burden to
show a change in condition concerning claimant’s November 26, 2010 return to work with
American Eagle. The deputy commissioner noted that claimant’s employment with American
Eagle was too short to constitute a change in her condition.
The deputy commissioner also found Starbucks’ May 25, 2011 application lacked merit,
concluding that claimant had not withdrawn from the labor force when she enrolled in college on
January 4, 2011. The deputy commissioner determined that claimant was not precluded from
seeking employment by enrolling in college, that she had not refused any vocational assistance
due to her status as a student, and that Starbucks had neither offered claimant a new job nor
offered to help her find a job. Accordingly, the deputy commissioner concluded that Starbucks’
allegations did not “establish a change in [claimant’s] condition sufficient to suspend payments
of compensation.”
Moreover, the deputy commissioner found unpersuasive Starbucks’ assertion that
claimant was required to notify the commission that she became a full-time college student. The
deputy commissioner observed that Code § 65.2-712 only imposed a duty to disclose to the
employer or its insurer, not the commission, a change in a claimant’s status as a full-time
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student. More importantly, the deputy commissioner interpreted Code § 65.2-712 to place “a
duty upon a claimant to disclose that he or she is no longer a full-time student for purposes of the
dependency provisions of the Act, not to disclose that he or she has become a full-time student.”
D. Full Commission Hearing
Starbucks requested a review of the deputy commissioner’s findings by the full
commission on September 12, 2011. On November 17, 2011, the commission unanimously
affirmed the deputy commissioner’s June 16, 2011 decision.
The commission found that Starbucks did not appeal or seek to vacate the July 27, 2010
award order, and concluded that the award was thus final. Applying the principles of res
judicata, the commission concluded that the award order barred Starbucks’ December 3, 2010
and May 18, 2011 requests for review. In addition, the commission found that Starbucks was
aware of claimant’s January 2010 unsuccessful work attempt prior to execution of the award
agreement, and, thus, “abandoned [its] claim to assert a change in condition prior to signing [the
award agreement].”
The commission also concluded that Starbucks’ May 25, 2011 application for hearing
was meritless, finding that claimant’s “enrollment in college [was] not a basis for termination of
[the] award.” Significantly, the commission affirmed the deputy commissioner’s finding that
there was no evidence that claimant had withdrawn from the labor market upon her enrollment in
college. Finally, the commission adopted the deputy commissioner’s interpretation of Code
§ 65.2-712 and concluded that claimant was under no duty to inform the commission of her
status as a full-time student. This appeal followed.
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II. ANALYSIS
A. Standard of Review
In reviewing a decision of the commission, we view the evidence in the light most
favorable to claimant, the party prevailing below. See Wainwright v. Newport News
Shipbuilding and Dry Dock Co., 50 Va. App. 421, 430, 650 S.E.2d 566, 571 (2007). “Decisions
of the commission as to questions of fact, if supported by credible evidence, are conclusive and
binding on this Court.” Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d
824, 826 (1991); Wise Coal & Coke Co. v. Roberts, 157 Va. 782, 789, 161 S.E. 911, 913 (1932)
(noting that whether a claimant suffered a change in condition is a question of fact). “However,
the commission’s legal determinations are not binding on appeal and will be reviewed de novo.”
Wainwright, 50 Va. App. at 430, 650 S.E.2d at 571 (citing Robinson v. Salvation Army, 20
Va. App. 570, 572, 459 S.E.2d 103, 104 (1995)); see also Pruden v. Plasser Am. Corp., 45
Va. App. 566, 573, 612 S.E.2d 738, 742 (2005) (“The determination of res judicata is a question
of law and is reviewed de novo.” (citing Rusty’s Welding Serv., Inc. v. Gibson, 29 Va. App. 119,
128, 510 S.E.2d 255, 259 (1999) (en banc))).
B. Claimant’s January 26, 2010 Return to Work
Starbucks contends that the commission erred in denying its allegation that claimant
returned to work on January 26, 2010. Specifically, Starbucks contends that the commission
erroneously applied the doctrine of res judicata because the July 27, 2010 award order was not a
final judgment on the merits. Starbucks asserts that the award order was merely an
administrative order recognizing claimant’s right to collect wage-loss benefits and that “[t]he
substantive claim of [claimant’s] return to work was never litigated before the [c]ommission on
the merits.”
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As this Court has expressed before, “‘the relationship of the [c]ommission to an award is
that of a court to a judgment during the term at which it is rendered.’” Brock v. Voith Siemens
Hydro Power Generation, 59 Va. App. 39, 47, 716 S.E.2d 485, 488 (2011) (quoting K & L
Trucking Co., Inc. v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985)). “A ‘contested
matter before the [c]ommission,’ we explained, involves an ‘assertion of particular legal rights
which have arisen out of a definable factual transaction.’” Id. at 47, 716 S.E.2d at 488-89(quoting Thurber, 1 Va. App. at 220, 337 S.E.2d at 302).
Here, it is beyond dispute that the award order in the instant matter resulted from a
contested matter before the commission. Claimant sought to assert the legal rights available to
her under the Virginia Workers’ Compensation Act (Act) when she filed her April 19, 2010
claim for benefits. In her claim, claimant alternatively demonstrated a willingness to accept
temporary partial benefits during the period she worked light duty for Starbucks. Nevertheless,
Starbucks initiated an agreement on July 2, 2010, to award claimant temporary total disability
benefits beginning December 8, 2009, despite knowing that claimant had returned to work with
Starbucks, at the same store, on January 26, 2010.
The award order was also a final judgment. “Absent fraud or mistake, ‘the decisions of
the [c]ommission or its deputy commissioners from which no party seeks timely review are
binding upon the [c]ommission.’” Pruden, 45 Va. App. at 574, 612 S.E.2d at 742 (quoting
Thurber, 1 Va. App. at 219, 337 S.E.2d at 302). Here, the deputy commissioner accepted the
parties’ agreement to pay benefits and issued an award order consistent with the terms of the
agreement. Starbucks did not seek review of that order or move to have it vacated before it
became final.
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In an effort to avoid the conclusive effect of the award order, Starbucks contends that the
award order was not a final judgment because it was “administratively entered.” This argument
misplaces the inquiry this Court is required to make. An order by the commission awarding
benefits to a claimant by agreement of the parties is a final determination of the matters which
were actually, or might have been, litigated in that suit. See Brock, 59 Va. App. at 47, 716
S.E.2d at 488 (“‘[T]he relationship of the [c]ommission to an award is that of a court to a
judgment during the term at which it is rendered.’” (quoting K & L Trucking Co, 1 Va. App. at
219, 337 S.E.2d 299 at 302)); see also Wallihan v. Hughes, 196 Va. 117, 130, 82 S.E.2d 553,
561 (1954) (“When the parties are before a court of competent jurisdiction and a separation
agreement is approved, confirmed and decreed upon, its validity is by that judgment rendered res
judicata between the parties.”); Martin v. Martin, 167 Va. 206, 211, 188 S.E. 148, 150 (1936)
(“The judgment of a court of competent jurisdiction, dismissing a suit agreed, on the ground that
it has been agreed by the parties, is a final determination of the matters which were actually, or
might have been litigated in that suit, as against said parties and all claiming under them.”).
Accordingly, the suggestion that the award order was administratively entered provides no basis
for disturbing the commission’s determination.
Finally, Starbucks’ argument that the award order was not a final judgment because
claimant’s return to work “was never litigated before the [c]ommission on the merits,”
presupposes that res judicata applies only to issues actually litigated before a court or
commission. However, as this Court has expressed before, the principles of res judicata can be
comprised of two distinct concepts: “issue preclusion” and “claim preclusion.” See Brock, 59
Va. App. at 45, 716 S.E.2d at 487. “Issue preclusion bars ‘successive litigation of an issue of
fact or law actually litigated and resolved in a valid court determination essential to the prior
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judgment,’ even if the issue recurs in the context of a different claim.” Id. (quoting New
Hampshire v. Maine, 532 U.S. 742, 748-49 (2001)). In contrast, claim preclusion “‘foreclos[es]
litigation of a matter that never has been litigated, because of a determination that it should have
been advanced in an earlier suit.’” Nottingham v. Weld, 237 Va. 416, 419 n.2, 377 S.E.2d 621,
622 n.2 (1989) (quoting Migra v. Warren City School Dist. Bd. of Ed., 465 U.S. 75, 77 n.1
(1984)).
The issue raised before this Court was one of claim preclusion.
Virginia’s application of the claim preclusion component of res
judicata was best stated a century ago: “Every litigant should have
opportunity to present whatever grievance he may have” but if
given an opportunity to do so and “having failed to avail himself of
it, he must accept the consequences.” Miller v. Smith, 109 Va.
651, 655, 64 S.E. 956, 957 (1909). Thus, the “effect of a final
decree is not only to conclude the parties as to every question
actually raised and decided, but as to every claim which properly
belonged to the subject of litigation and which the parties, by the
exercise of reasonable diligence, might have raised at the time.”
Smith v. Holland, 124 Va. 663, 666, 98 S.E. 676, 677 (1919)
(citing Diamond State Iron Co. v. Alex K. Rarig & Co., 93 Va.
595, 25 S.E. 894 (1896); Miller, 109 Va. at 651, 64 S.E. at 956.
Claims precluded by res judicata include those “made or tendered
by the pleadings,” as well as those “incident to or essentially
connected with the subject matter of the litigation, whether the
same, as a matter of fact, were or were not considered.” Lofton
Ridge, LLC v. Norfolk S. Ry., 268 Va. 377, 381, 601 S.E.2d 648,
650 (2004) (quoting Kemp v. Miller, 166 Va. 661, 674-75, 186
S.E. 99, 103-04 (1936)).
Brock, 59 Va. App. at 46, 716 S.E.2d at 488 (emphasis added).
For the foregoing reasons, we affirm the commission’s finding that res judicata bars
review of claimant’s January 26, 2010 return to work.
C. Claimant’s November 26, 2010 Return to Work
Starbucks next asserts that the commission erred in finding that claimant’s twelve-hour
shift with American Eagle was not of sufficient duration to show a change in condition and
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return to work. Starbucks argues that a return to work of any duration constitutes a change in
condition that warrants termination of claimant’s benefits as a matter of law. In support of this
argument, Starbucks relies on Brown v. Johnston Memorial Hospital, No. 233-60-73 (Va.
Workers’ Comp. Comm’n Mar. 8, 2010), and Robbins v. Lee County School Board, No.
209-20-79 (Va. Workers’ Comp. Comm’n Sept. 26, 2005). Starbucks cites Brown and Robbins
to support the argument that a return to work for one or two days, respectively, would be
sufficient to prove a change in condition. 1
Starbucks’ reliance on Brown and Robbins misconstrues the change in condition
standard. In neither Brown nor Robbins did the commission establish as a categorical rule that a
one or two day absence from, or return to, work would per se constitute a change in condition.
Rather, the commission held in both cases that a change in condition occurred where the
evidence demonstrated that the claimant was unable to perform his work for one day, Robbins,
No. 209-20-79 (Va. Workers’ Comp. Comm’n Sept. 26, 2005) (finding the claimant disabled for
missed day of work because deputy commissioner found the claimant acted reasonably in
missing work due to back pain), or two days, Brown, No. 233-60-73 (Va. Workers’ Comp.
Comm’n Mar. 8, 2010) (finding the claimant disabled where physician excused the claimant
from work for two days due to scheduled diagnostic studies). Because Brown and Robbins
involved changes in condition based upon claimants’ inability to work, they are distinguishable
from and inapplicable to the instant case.
1
While decisions of the commission are not binding on this Court, they may be
persuasive in some cases. See Pruden, 45 Va. App. at 580, 612 S.E.2d at 745.
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Accordingly, the issue facing the commission was not simply whether claimant attempted
to return to her pre-injury work. Rather, under Code § 65.2-101 2 Starbucks bore the burden of
proving by a preponderance of the evidence that claimant experienced a change in condition that
affected her right to compensation. See Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459,
464, 359 S.E.2d 98, 101 (1987) (“General principles of workman’s compensation law provide
that ‘in an application for review of an award on the ground of change in condition, the burden is
on the party alleging such change to prove his allegations by a preponderance of the evidence.’”
(quoting Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572
(1986))). As the Supreme Court has expressed, “[t]he threshold test of compensability is
whether the employee is ‘able fully to perform the duties of his preinjury 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)).
In the present case, Starbucks’ application for a change in condition was premised solely
on claimant’s November 26, 2010 return to work at American Eagle. While a return to work
may ordinarily be strong evidence that a claimant is capable of performing his or her pre-injury
employment, it is not dispositive. Here, the commission credited “claimant’s hearing testimony
that she worked for American Eagle a total of 12 hours over only two workdays that were
approximately three weeks apart,” and further found claimant’s unsuccessful attempt to return to
the labor force not consequential enough to constitute a change in condition. Reviewing the
commission’s holding, we cannot say as a matter of law that the evidence submitted by
Starbucks, simply showing that claimant returned to work for a period of twelve hours, was
2
Code § 65.2-101 states that a “‘[c]hange in condition’ means a change in physical
condition of the employee as well as any change in the conditions under which compensation
was awarded, suspended, or terminated which would affect the right to, amount of, or duration of
compensation.”
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sufficient to prove a change in condition. Tomko v. Michael’s Plastering Co., 210 Va. 697, 699,
173 S.E.2d 833, 835 (1970) (“Unless we can say as a matter of law that the evidence submitted
by Tomko was sufficient to sustain his burden, then the [c]ommission’s finding that he did not
suffer injury by accident is binding and conclusive upon us.”). Accordingly, we affirm the
commission’s holding on this issue.
D. Claimant’s Enrollment in College
Starbucks raises two arguments under its final assignment of error. First, Starbucks
asserts that claimant was required by Code § 65.2-712 to disclose her status as a full-time student
to the commission, and, second, Starbucks argues that claimant abandoned the labor force when
she enrolled as a full-time student and is no longer entitled to temporary total disability
payments.
In reviewing the decision of the commission in this regard, we note that “‘[c]onclusions
of the commission upon questions of law, or mixed questions of law and fact, are not binding on
appeal.’” Gallahan v. Free Lance Star Publ’g Co., 41 Va. App. 694, 698, 589 S.E.2d 12, 14
(2003) (quoting Sinclair v. Shelter Constr. Corp., 23 Va. App. 154, 156-57, 474 S.E.2d 856,
857-58 (1996)). Nevertheless, “[t]he commission’s construction of the Act is entitled to great
weight on appeal.” Id. (quoting Cross v. Newport News Shipbuilding and Dry Dock Co., 21
Va. App. 530, 533, 465 S.E.2d 598, 599 (1996)).
Starbucks asserts that claimant was required by Code § 65.2-712 to disclose her status as
a full-time student to the commission. Starbucks contends that because claimant failed to make
this disclosure, the award for temporary total disability should be terminated on the date claimant
enrolled in Blue Ridge Community College.
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In affirming the holding of the deputy commissioner, the commission held that the
disclosure requirement in Code § 65.2-712 referred not to injured employees, like claimant, but
to dependents pursuant to Code § 65.2-515.
Recognizing the great weight afforded to the commission’s construction of the Act, we
also note that the language and history of Code § 65.2-712 demonstrate an intent to link receipt
of compensation as a statutory dependent with the disclosure requirement for a change in student
status. 3 See Higgins v. Inspection Enterprises, Inc., 77 O.W.C. 273 (1998) (“[Code §] 65.2-712
requires a dependent to notify the [c]ommission of her status as a student.”); Boyd v. James
River Limestone Company, Inc., 78 O.W.C. 157 (1999) (“The 1996 Amendments to [Code]
§ 65.2-712 impose another singular duty upon the statutory dependent to immediately disclose to
the employer a change in his status as a full-time student.”).
Because we find that Code § 65.2-712 does not impose on claimant a requirement to
disclose to the commission her status as a full-time student, we affirm this portion of the
commission’s decision.
3
Prior to 1996, Code § 65.2-712 stated:
So long as an employee receives payment of compensation under
this title, such employee shall have a duty immediately to disclose
to the employer, when the employer is self-insured, or insurer in all
other cases, any incarceration, return to employment or increase in
his earnings.
In 1996, Code § 65.2-712 was amended to read:
So long as an employee or statutory dependent pursuant to [Code
§] 65.2-515 receives payment of compensation under this title, any
such person shall have a duty immediately to disclose to the
employer, when the employer is self-insured, or insurer in all other
cases, any incarceration, return to employment, increase in his
earnings, remarriage or change in his status as a full-time student.
(Amended language in italics).
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In addition, we also affirm the commission’s holding that claimant’s enrollment in
college was not a basis for terminating the award order. Starbucks argues that claimant
abandoned the labor force when she enrolled as a full-time student and is, accordingly, no longer
entitled to temporary total disability payments. In support of this argument Starbucks cites
Baskerville v. Saunders Oil Co., 1 Va. App. 188, 192, 336 S.E.2d 512, 514 (1985).
However, Starbucks’ reliance on Baskerville is misplaced. In Baskerville, this Court held
that a “[c]laimant’s voluntary criminal acts leading to his incarceration . . . removed him from
the labor market,” and relieved the employer from paying benefits during the period of
incarceration. Id. In reaching this holding, the Court noted that workers’ compensation exists to
compensate an employee for loss of earning power, which is not always proportional to
disability. Id. at 193, 336 S.E.2d at 514. While incarceration would not affect the earning power
of an employee suffering from permanent or temporary total disability, “[i]n the case of
temporary partial disability . . . incarceration would be the controlling factor in preventing the
employee from participating in selective employment or rehabilitative services.” Id. at 193, 336
S.E.2d at 514-15. Accordingly, the Court confined the holding “to the case of temporary partial
disability when incarceration occurs.” Id. at 194, 336 S.E.2d at 515.
This distinction between total and partial disability—juxtaposed by this Court in
Baskerville—is relevant here. Whether a claimant voluntarily removed herself from the labor
force is a factor the commission and this Court consider when determining whether a claimant
failed to market her remaining work capacity. See Lynchburg Gen. Hosp. v. Spinazzolo, 22
Va. App. 160, 468 S.E.2d 146 (1996). However, a claimant under an award for permanent or
temporary total disability is under no obligation to market her remaining work capacity. See
Georgia Pac. Corp. v. Dancy, 17 Va. App. 128, 134, 435 S.E.2d 898, 901-02 (1993) (“Because
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Dancy is totally, not partially, disabled, he is not required to prove that he made a reasonable
effort to market his residual work capacity in order to receive temporary total disability
benefits.”). Rather, a claimant under an open award for permanent or temporary total disability
is required to cooperate with reasonable vocational rehabilitation efforts offered by her
employer. Code § 65.2-603.
Here, claimant is under an open award for ongoing temporary total disability.
Accordingly, claimant is required only to cooperate with reasonable vocational rehabilitation
efforts offered by Starbucks. See Code § 65.2-603. Starbucks has not accused claimant of
refusing vocational rehabilitation services or failing to accept selective employment.
Consequently, we find that claimant has not abandoned the labor force by enrolling in college
courses, and, accordingly, affirm the holding of the commission.
III. CONCLUSION
For these reasons, we find that the commission did not err in denying Starbucks’
allegations that claimant experienced a change in condition upon her return to work on January
26, 2010, that claimant experienced a change in condition upon her return to work on November
26, 2010, or that claimant abandoned the labor force when she enrolled in college courses on
January 4, 2011. Therefore, the decision of the commission is affirmed.
Affirmed.
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