Dennis L. Carr v. Virginia Electric & Power Company

COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Overton and Senior Judge Duff
Argued at Alexandria, Virginia
DENNIS L. CARR
OPINION BY
v. Record No. 2939-96-4 JUDGE JOHANNA L. FITZPATRICK
JULY 29, 1997
VIRGINIA ELECTRIC & POWER COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Wesley G. Marshall (Peter M. Sweeny &
Associates, P.C., on briefs), for appellant.
Glenn S. Phelps (Ruth Nathanson; Midkiff &
Hiner, P.C., on brief), for appellee.
Dennis L. Carr (claimant) appeals a decision of the Workers'
Compensation Commission denying him an award of temporary partial
disability benefits. He contends that the commission erred in
failing to award him benefits for the time periods during which
he performed light duty work but received no opportunities for
overtime. For the reasons that follow, we reverse the decision
of the commission.
I. BACKGROUND
Claimant was employed with Virginia Power (employer) as a
lineman for approximately twenty-three years. During his
employment as a lineman, claimant's duties included "climb[ing]
poles," "work[ing] out of a bucket truck," trouble shooting,
building lines, and "restor[ing] service customers when they're
out of lights." Claimant typically worked more than forty hours
per week and regularly received overtime compensation.
Additionally, claimant received bonus or incentive pay when he
"filled other shifts" or worked "outside of his department of
geographic area." On July 5, 1995, claimant, who is left-handed,
suffered a compensable injury resulting in the amputation of his
left ring finger.
Subsequently, claimant was paid wages in lieu of
compensation for periods of total incapacitation from July 6,
1995 through August 5, 1995, and from September 26, 1995 through
October 15, 1995. Claimant performed light duty work from August
6, 1995 through September 25, 1995, and from October 16, 1995 and
continuing. Claimant testified that he returned only to light
duty work "[b]ecause my doctor says I can't do line work
anymore." A letter from one of claimant's doctors states that
claimant's injury "precludes him from performing all of his
regular duties as an electrician." Claimant's light duty work
included the following responsibilities: "some inspection work
on [the] equipment, visual, just visual inspections, and . . .
read[ing] some meters from time to time." During the light duty
work, claimant worked "eight hours a day, 40-hour week." He
received, during his light duty work, approximately $114.16 less
1
per week than he received at his pre-injury work. However,
during his light duty work, he was neither offered overtime work,
nor paid additional wages; nor did he receive any "shift
differential."
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The commission calculated claimant's pre-injury average
weekly wage to be $1,055.37. This amount is $114.16 more per
week than claimant's weekly wage for his light duty work.
2
At the hearing on April 12, 1996 before the deputy
commissioner, claimant admitted that he sometimes declined or was
unavailable to work overtime, that he had been disciplined for
having low acceptance rates for overtime, and that he did not
know exactly how much overtime he would have been offered.
Finally, claimant testified that he knew that overtime had been
offered to other linemen during the time period in question, and
stated that he would have accepted such an opportunity if it had
been offered.
David H. Driggs (Driggs), the construction superintendent,
testified that there was no way to predict how much overtime
would be available to any given employee from year to year, and
that, in the past, claimant failed to maintain the amount of
overtime required by the company. However, Driggs also testified
that, during the past ten years, overtime had always been offered
to linemen.
Following the hearing, the deputy commissioner denied
claimant's request for temporary partial disability benefits for
the wage loss allegedly resulting from his lack of overtime work,
and found that "the reduction in earnings stems from purely
economic factors unrelated to the accident. Therefore, the
claimant has failed to prove a causal nexus between the accident
and his loss of earnings."
On November 4, 1996, the full commission reviewed the record
and found that "the claimant was not medically restricted from
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working overtime and had not proven that his wage loss was due to
medical restrictions from the industrial accident." The
commission made no finding or classification as to the job title
of claimant's light duty position relative to his pre-injury
title of lineman. Accordingly, the commission affirmed the
decision of the deputy commissioner that denied claimant
temporary partial benefits for wages lost due to a lack of
overtime work or shift differential.
II. WAGE LOSS
Claimant contends that because he was offered light duty
work without the opportunity to work overtime, shift
differential, or out-of-business-area pay, he suffered a wage
loss below his pre-injury wage. Additionally, claimant argues
that his wage loss is properly attributable to his occupational
injury, as medically imposed restrictions prevented him from
performing his pre-injury job and receiving extra earnings, and
it is therefore compensable under Code § 65.2-502. 2
2
Code § 65.2-502, Compensation for partial incapacity,
provides as follows:
Except as otherwise provided in
§ 65.2-503 or § 65.2-510, when the incapacity
for work resulting from the injury is
partial, the employer shall pay, or cause to
be paid, as hereinafter provided, to the
injured employee during such incapacity a
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, but not more than 100 percent of
the average weekly wage of the Commonwealth
as defined in § 65.2-500. In no case shall
4
We recently addressed the issue of the impact of economic or
business conditions on a partially disabled claimant's right to
compensation. See Consolidated Stores Corporation, et al. v.
Graham, ___ Va. App. ___, ___ S.E.2d ___ (1997). In that case,
some time after her injury, claimant was authorized to perform
light duty work. She was offered and she accepted a position as
a sales clerk in which she made the same hourly wage as her pre-
injury position as a "stocker." However, "[d]ue to economic
conditions, [employer] assigned [claimant] a reduced number of
hours, resulting in an average weekly wage of less than $108."
Consolidated, ___ Va. App. at ___, ___ S.E.2d at ___. Although
the deputy commissioner found that "any diminution in hours
worked was a product of the down turn in business," the full
commission reversed and found that the claimant had not been
"released to her pre-injury job and that she was not performing
all her pre-injury duties" and that the "'fact that the
availability of light duty work is limited due to economic
conditions does not diminish the claimant's right to compensation
when the injury prevents her from performing her regular job.'"
Id. at ___, ___ S.E.2d at ___.
Finding that claimant was not released to her pre-injury
the period covered by such compensation be
greater than 500 weeks. In case the partial
incapacity begins after a period of total
incapacity, the latter period shall be
deducted from the maximum period herein
allowed for partial incapacity.
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employment and that her light duty responsibilities as a store
clerk were not commensurate with her pre-injury position of a
stocker, we held that "the employer's financial condition and the
availability of alternative work do not affect the claimant's
right to compensation due to an impaired capacity to perform his
pre-injury duties." Id. at ___, ___ S.E.2d at ___ (emphasis
added). In reaching this decision, we relied on Code § 65.2-502:
During a period of partial incapacity, a
claimant performing work remains entitled to
compensation benefits, determined in part by
calculating the difference between the
claimant's average weekly wage before and
after the injury. Thus, by providing
suitable alternative employment to a
claimant, an employer may avoid paying
compensation benefits.
Id. Accordingly, we held that because claimant was neither
released to return to her pre-injury duties, nor restored to her
pre-injury capacity by the employer's offered alternative light
duty work, the employer remained liable to fulfill its duty to
compensate claimant.
The circumstances in Consolidated are remarkably similar to
those of the instant case. Here, employer offered claimant light
duty work similar in pay to his pre-injury employment as a
lineman. As in Consolidated, however, claimant suffered a wage
loss at the light duty position that he would not have incurred
at his pre-injury placement. "The threshold test for
compensability is whether the employee is 'able fully to perform
the duties of his pre[-]injury employment.'" Celanese Fibers Co.
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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)). Under the holding in Consolidated, the 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. In both
Consolidated and this case, the employer failed to make this
offer. Claimant, who made at least some overtime in his previous
position, now makes none. The evidence demonstrated that other
linemen continue to receive overtime and that claimant's range of
duties in his light duty work is not equivalent to his pre-injury
duties as a lineman. Thus, claimant has not been released to his
pre-injury capacity as a lineman. Accordingly, employer's
inability to predict the available overtime to the linemen during
the period in question does not diminish claimant's right to
compensation, as his work-related injury prevents him from
performing lineman duties, and employer remains liable for the
wage loss suffered by claimant. See also Davey Tree Expert
Service Co. v. Acuff, 20 Va. App. 320, 456 S.E.2d 544 (1995)
(holding that claimant is entitled to temporary partial
disability benefits to compensate him for the loss of his
capability to engage in his pre-injury work, where this loss is
caused by work-related injury).
For the foregoing reasons, the decision of the commission is
reversed and the case remanded for the commission to enter an
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order consistent with this opinion.
Reversed and remanded.
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