Barbara Diane Gorski v. Norfolk Shipbuilding, etc.

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Senior Judge Hodges
Argued at Norfolk, Virginia
NORFOLK SHIPBUILDING AND DRYDOCK CORPORATION
v. Record No. 3115-96-1
BARBARA DIANE GORSKI MEMORANDUM OPINION * BY
JUDGE SAM W. COLEMAN III
BARBARA DIANE GORSKI AUGUST 12, 1997
v. Record No. 3131-96-1
NORFOLK SHIPBUILDING AND DRYDOCK CORPORATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Bradford C. Jacob (Taylor & Walker, P.C., on
briefs), for Norfolk Shipbuilding and Drydock
Corporation.
Gregory E. Camden (Rutter & Montagna, L.L.P.,
on briefs), for Barbara Diane Gorski.
In this appeal from the Workers' Compensation Commission,
the parties raise two issues. First, the claimant contends that
the commission erred by finding that she was not entitled to
temporary partial disability benefits from September 20, 1995 to
December 15, 1995, a period in which she had returned to work in
a light duty capacity but was not offered overtime work as she
had been offered in her pre-injury job. Second, the employer
contends that the commission erred in finding that the claimant
made a reasonable effort to market her residual work capacity.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
For the following reasons, we reverse and remand the decision on
temporary partial disability benefits and we affirm the
commission's decision on marketing.
TEMPORARY PARTIAL DISABILITY BENEFITS
Two recent decisions control the issue of whether the
partially disabled claimant is entitled to benefits because her
light duty job has not included overtime wages as did her
pre-injury work. In Carr v. Virginia Elec. & Power Co., ___ Va.
App. ___, ___ S.E.2d ___ (1997), and Consolidated Stores Corp. v.
Graham, 25 Va. App. 133, 486 S.E.2d 576 (1997), we held that when
a claimant who has not been released to his or her 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 [her] 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 or her
pre-injury wage. Thus, if a claimant who has not recovered his
or her "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 or she is
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entitled to temporary partial disability benefits to compensate
for the wage loss incurred. See Carr, ___ Va. App. at ___, ___
S.E.2d at ___; Consolidated Stores, 25 Va. App. at 136-37, 486
S.E.2d at 578.
The uncontradicted evidence in this case proves that the
claimant consistently accepted overtime hours that were offered
to her in her pre-injury employment. However, in her light duty
employment, she was not offered overtime hours. The employee's
average weekly wage earned prior to her 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, she
may have suffered a post-injury loss in wages. Accordingly, we
reverse and remand for a calculation of temporary partial
disability benefits for the period of September 20, 1995 to
December 15, 1995, based upon an average pre-injury weekly wage
including overtime earnings.
MARKETING EFFORTS
In order to qualify for continuing benefits, a claimant who
has reached maximum medical improvement but remains partially
disabled has a duty to make a reasonable effort to market her
residual work capacity. National Linen Serv. v. McGuinn, 8 Va.
App. 267, 269, 380 S.E.2d 31, 33 (1989). The burden is on the
claimant to show that she has made a reasonable effort to obtain
work but has been unable to do so. Washington Metro. Area
Transit Auth. v. Harrison, 228 Va. 598, 601, 324 S.E.2d 654, 655
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(1985). What constitutes a reasonable marketing effort is
determined by the facts and circumstances of each case. Great
Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d
98, 100 (1987).
"In determining whether a claimant has made a reasonable
effort to market his remaining work capacity, we view the
evidence in the light most favorable to the prevailing party
before the commission." McGuinn, 8 Va. App. at 270, 380 S.E.2d
at 33. The commission's factual findings will be upheld if
supported by credible evidence in the record. Trammell Crow Co.
v. Redmond, 12 Va. App. 610, 614, 405 S.E.2d 632, 635 (1991).
On this record, we hold that the evidence is sufficient to
support the commission's finding that the claimant made a
reasonable effort to market her remaining work capacity.
Claimant made approximately twenty-five contacts between February
and April of 1996 in order to find work suitable to her residual
capacity. She registered with the Virginia Employment Commission
and contacted her union concerning job availability outside of
Norshipco. She reviewed want ads from the newspaper and made
several phone contacts from those ads. She also contacted a
local community college to get information on vocational
training. Claimant testified that she had difficulty applying
for many jobs due to transportation problems. The deputy
commissioner made a credibility finding that Gorski was making an
honest effort to search for work. Thus, we cannot say that she
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failed to make a reasonable effort to market her residual work
capacity.
Accordingly, we affirm the commission's decision on
marketing and reverse and remand for a calculation of temporary
partial disability benefits, taking into account the claimant's
wage loss due to an unavailability of overtime hours.
Affirmed in part,
reversed in part,
and remanded.
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