COURT OF APPEALS OF VIRGINIA
Present: Judges Haley, Petty and Powell
Argued at Salem, Virginia
UTILITY TRAILER MANUFACTURING COMPANY AND
LIBERTY INSURANCE CORPORATION
OPINION BY
v. Record No. 1484-10-3 JUDGE JAMES W. HALEY, JR.
JULY 12, 2011
JOSHUA G. TESTERMAN
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Robert M. Himmel (Christopher M. Kite; Lucas & Kite, PLC, on
brief), for appellants.
(D. Edward Wise, Jr.; Arrington, Schelin & Herrel, on brief), for appellee.
Appellee submitting on brief.
INTRODUCTION
The Workers’ Compensation Act (the “Act”) authorizes awards for lost wages resulting
from an “incapacity for work resulting from” injury. Code § 65.2-500 et seq. The issue here for
resolution is whether a furlough from work of pre-defined and limited duration, applicable to all
manufacturing employees, both those with and without restricted work capacity, justifies an
award for lost wages to a worker with restricted capacity, in the absence of evidence
demonstrating a causal relationship between that restriction and the wage loss. We conclude
such an award under these circumstances is not authorized by the Act.
FACTS
The facts may be succinctly stated:
As a result of an industrial accident he had as an hourly employee in the manufacturing
line at Utility Trailer Manufacturing Company (“Utility”) on January 9, 2006, Joshua Testerman
(“claimant”) was awarded medical benefits, temporary total disability benefits, and permanent
partial disability. Claimant thereafter resumed his work as an hourly employee at Utility that
same year in a manufacturing line position commensurate with his restricted work capacity. He
has worked in that capacity at all times here relevant.
The plant manufacturing line was shut down from January 5 to January 9, 2009. All
employees on that line were furloughed for this period. On March 11, 2009, claimant filed an
application seeking “[c]ompensation for total wage loss . . . [f]rom January 5, 2009 [t]o January
9, 2009.”
William Weaver, the human resources manager who had worked at Utility for twenty
years, testified that the manufacturing line was shut down that week for an annual “physical
inventory count.” He testified that the inventory count is usually held “the first full week in
January,” because “you cannot run manufacturing while we’re doing physical inventory. You’ve
got to stop everything and do accounts.” He further testified that every employee was informed
verbally of that week-long shutdown, specifically the “start and end date,” and notice of the same
was posted in the factory hallway. That posted notice is part of the record before us. He further
testified, “[w]e told them [the manufacturing employees] we were shut down for one week
only.” 1 In short, since the need for manufacturing production traditionally slowed in January, it
was in that month that the annual inventory was held.
At the hearing before a deputy commissioner, claimant testified as follows:
Attorney: And after January 9th did you return back to your light duty job?
Claimant: Yes, sir.
Q.: And have you continued to work it since that time?
1
The record reflects that some salaried non-production line employees were not
furloughed, as they were needed to conduct the inventory. In past years, but not in the furlough
period here under consideration, some hourly wage manufacturing employees, like claimant,
were used in the physical inventory process. However, when so used, they were chosen to
participate on the basis of seniority.
-2-
A.: Yes, sir.
* * * * * * *
Q.: . . . you understood when you went out that it was for this
period of time, a limited defined period of time, and that you’d be
brought back right in at the end of that week?
A.: Yes, sir.
In addition to the foregoing, claimant testified he thought the week work stoppage
developed because: “[W]e was [sic] slow on work.” Claimant acknowledged there had been an
annual inventory during the first week of January every year of the five years he had worked for
Utility. Nonetheless he claimed, in contradiction to the testimony of William Weaver, that he
had worked production during those prior inventories.
Finally, narrowing our inquiry: (1) the parties have stipulated that claimant adequately
marketed his residual work capacity during the week of January 5-9, 2009; 2 (2) upon inquiry by
the deputy commissioner as to whether the shutdown resulted from “an economic downturn,”
counsel for employer replied: “Yes, just the plant closed for inventory. It’s a combination of
those two things. I think they both really come under the guise of the causation defenses.”; and
(3) claimant returned to work following the shutdown at his same salary.
2
We note that a claimant is required to prove not just that he made reasonable efforts to
market his residual capacity, but further, that his disability rendered him “unable to market his
remaining capacity for work.” Pocahontas Fuel Co., Inc. v. Agee, 201 Va. 678, 681, 112 S.E.2d
835, 837 (1960) (cited with approval in Washington Metro. Transit Auth. v. Harrison, 228 Va.
598, 600, 324 S.E.2d 654, 655 (1985)); see also County of James City Fire Dep’t. v. Smith, 54
Va. App. 448, 454, 680 S.E.2d 307, 310 (2009). The record in this case shows that claimant
went to five places on January 5, 2009 (the first day off during the shutdown). Three were not
hiring anyone, one was hiring only management, and the other did not have any job applications
available. See App. at 36. No other efforts were made. That said, those efforts do not show that
claimant was unable to obtain employment because of his restricted work capacity; rather, they
show that even those also laid off during the shutdown, without any restricted work capacity,
would likewise have been unable to obtain employment from the same potential employers
claimant contacted.
-3-
By opinion dated July 29, 2009, a deputy commissioner rejected employer’s defense that
the wage loss “was not causally related to” claimant’s restricted capacity. Rather, relying upon
Metro. Mach. Corp. v. Sowers, 33 Va. App. 197, 532 S.E.2d 341 (2000), she awarded lost wage
benefits because claimant’s “ability to compete economically . . . with co-workers . . . attempting
to find work during a lay-off, is permanently impaired.”
By opinion dated June 9, 2010, a majority of the commission affirmed, specifically
adopting the deputy’s reasoning. Testerman v. Utility Trailer Mfg. Co., 226-77-65, 2010 VA
Wrk. Comp. LEXIS 290 (Jun. 9, 2010). Dissenting, Commissioner Williams noted that the
claimant “did not lose wages because of his impaired capacity, but he lost wages, as did his
co-workers, because of the employer’s shut-down.” Id. at *12. He continued: “A period of one
week is simply of insufficient duration to reasonably conclude that the claimant’s ability to
obtain other light duty work was the result of his disability as opposed to some other cause.” Id.
at *12-13. He concluded that the effect of the commission’s decision placed claimant “in a
better position than his co-workers because of his disability without any showing that his
disability had made him any less likely to find employment than his co-workers during the same
period.” Id. at *13 (emphasis added).
ANALYSIS
Our analysis begins with a review of our cases relevant to the inquiry.
In Metro Mach. Corp., 33 Va. App. at 202, 532 S.E.2d at 343-44, “the majority of the
company’s work force was laid off solely for economic reasons,” on March 28, 1997. (Emphasis
added.) This included Sowers, a restricted capacity employee. The layoff was of then undefined
duration. 3 “Claimant sought and received unemployment benefits.” Id. at 202, 532 S.E.2d at
3
In November 1997, eight months later, all laid-off employees, including Sowers, were
recalled to work, apparently because of improved economic conditions.
-4-
344. He further sought temporary total and temporary partial disability benefits under the Act.
We rejected, as had the commission, the employer’s defense that “because the layoff was plant
wide and economic in nature, claimant was not entitled to disability benefits because his lack of
work was unrelated to his injury.” Id. at 208, 532 S.E.2d at 347. We found a causal relationship
because claimant’s opportunity to engage in work was limited by his restricted capacity and
“[t]hus, he did not have the same . . . ability as other [not restricted capacity] employees to find
other employment.” Id. at 209, 532 S.E.2d at 347.
In Carr v. Va. Elec. & Power Co., 25 Va. App. 306, 309, 487 S.E.2d 878, 880 (1997), the
commission had denied the claimant benefits, finding that he, a restricted capacity lineman, had
lost overtime because of “purely economic factors unrelated to the accident.” We reversed,
holding that business or economic conditions did not diminish employer liability for lost wages
when other non-restricted capacity linemen “continue[d] to receive overtime” wages during “the
[time] period in question.” Id. at 312, 487 S.E.2d at 881. Thus, we concluded there was a causal
relationship between the overtime wage loss and the earlier injury.
In Consol. Stores Corp. v. Graham, 25 Va. App. 133, 486 S.E.2d 576 (1997), the injured
hourly employee, formerly a stocker, returned to light-duty work as a sales person. Her hours
were reduced as a sales person, according to Consolidated, because of a down turn in business.
In affirming a wage differential award, 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 137, 486 S.E.2d at 578.
Three factors are common to each of the foregoing cases: (1) the suspension or reduction
of work for each claimant began or continued for an undefined duration; (2) by comparison with
non-restricted employees, wages were lost; that is, Carr lost overtime compared with
non-restricted linemen, Graham had fewer hours as a sales person than as a stocker, and Sowers’
-5-
physical restrictions diminished his ability to find work compared to non-restricted co-workers;
and (3) the causal relationship between the wage loss and the injury was established by the
evidence.
The commission has also considered cases similar to the instant case, but in each of the
following cases, one or more of the three above-noted factors are absent.
In Jones v. Genie Co., No. 166-97-76, 1998 VA Wrk. Comp. LEXIS 4046 (Dec. 3, 1998),
employer’s plant closed from December 23, 1997 to January 8, 1998 for annual maintenance and
repairs. All employees, including the restricted work claimant, were furloughed for that period.
In denying the claim for lost wages, the commission wrote:
In this case, the claimant, like all of the . . . other employees, did
not work for two weeks because of the annual closing for repairs
and maintenance. She did not lose wages because of her impaired
capacity, but she lost wages, as did her coworkers, because of the
shutdown and would have lost the wages in her pre-injury job. If
the claimant were to receive benefits for the brief shutdown period,
she would be in a better position than her coworkers because of her
disability.
Id. at *4.
The commission continued:
While two weeks is not considered to be a long enough period to
require marketing, it is also not a sufficiently long period to make a
finding that a partially disabled worker is disadvantaged when all
other employees are also out of work. This differs from a case
where the shutdown is long-term and the employee, after a
reasonable marketing effort, shows that the disability restricted
alternative employment opportunities.
Id.
The commission was faced with similar circumstances in Rodriguez v. Stouffer
Concourse Hotel, No. 160-73-71, 2005 VA Wrk. Comp. LEXIS 3984 (Dec. 21, 1998). On
December 14, 1997, Stouffer, a restricted worker, and all other employees, were told that the
hotel would be closed for six weeks for renovation and that he, and all other employees, would
-6-
be rehired when the renovation was complete. He was rehired on January 31, 1998. In denying
the claim, the commission wrote:
Here, the claimant suffered a wage loss because the employer
undertook a renovation project. The project . . . was for a definite,
relatively fixed period. The employees in [Consol. Stores Corp.]
. . . and Graham, however, suffered wage loss for an indefinite
period. These cases, therefore, stand for the proposition that an
employer may not escape liability for a partial wage loss by
indefinitely eliminating a light-duty assignment for “economic
reasons.” . . . Here the claimant was out of work for approximately
six weeks because of the renovation project. The claimant was not
singled out by the employer, but was treated similarly to all
employees whose work was affected by the renovation. Thus, we
find that the claimant did not lose wages because of any impaired
capacity, but because of the renovation.
Id. at *3, 6.
Commentators have noted the issue here for resolution. In 4 Arthur Larson & Lex K.
Larson, Larson’s Workers’ Compensation Law, § 84.03 (2004), that commentator writes, “[i]t is
not difficult to phrase a plausible rule: Loss of employment should not be deemed due to
disability if a worker without the disability would lose employment or suffer a reduction in
earnings under the same economic conditions—but whether this formula can be applied with any
precision may be open to question.”
Any attempt at precision requires a delineation of factors for consideration in establishing
those “same economic conditions.” We find they include: (1) the length of any furlough from
work; (2) whether that furlough included all employees, restricted or not, of the same class;
(3) the reason for the furlough; (4) whether the term of the furlough was pre-determined by the
employer; and (5) whether employees were offered employment at the termination of the
furlough. These factors address the fundamental issue in these cases: is any wage loss causally
related to the injury?
-7-
In this case, the furlough was for one week, based upon a combination of an annual slow
down in manufacturing needs and an annual physical plant inventory. All workers in the
manufacturing line, with or without restricted work capacities, were furloughed. The furlough
was pre-determined as to length. All employees, with or without restricted work capacities, were
advised they could return to work at the end of the furlough, as did claimant. There was no
confluence of all of these factors in Metro, Graham, or Carr. Here, claimant was off for one
week. As the dissenting commissioner wrote, “[a] period of one week is simply of insufficient
duration to reasonably conclude that the claimant’s ability to obtain other light duty work was
the result of his disability . . . .” This was the same conclusion reached by the commission in
Jones, where the furlough was for two weeks.
As noted above, claimant’s efforts to obtain work on January 5, 2009, were unsuccessful,
as would have been the efforts of his fellow furloughed employees without work-restricted
capacity, because the potential employers contacted simply were not hiring. Accordingly, it was
not claimant’s limited work capacity, when compared with non-restricted fellow employees, that
caused his lack of employment. And it was claimant’s burden to demonstrate the causal
relationship between his loss of wages and his injury. Moreover, as noted by the dissenting
commissioner, if claimant were awarded benefits for lost wages, he would be “in a better
position than his [non-restricted] co-workers . . . .”
We do not believe the dissent properly addresses our decision.
We hold only that during a furlough a condition precedent for an award to a partially
incapacitated employee for lost wages (or diminution in earning power) is a causal relationship
between that incapacity and that loss. We do not assert that a partially incapacitated employee
must prove an actual loss of wages during a period of furlough. We do assert that the loss of
actual or potential wages must be the result of the partial incapacity. Indeed, the language of
-8-
Code §65.2-502 (“when the incapacity for work resulting from the injury is partial . . . .”) admits
of no interpretation but that a causal relationship is required. See Great Atlantic & Pac. Tea Co.
v. Bateman, 4 Va. App. 459, 461, 359 S.E.2d 98, 99 (1987) (“Compensation for loss of earnings
due to an injury is governed by Code §§ 65.1-54 and 65.1-55. Benefits under these sections for
total and partial incapacity compensate the employee for loss of earnings resulting from the
injury”), quoted with approval in Twenty-First Century Concrete v. Giacchina, 20 Va. App. 326,
331, 457 S.E.2d 379, 381 (1995); Crystal Oil Co. v. Dotson, 12 Va. App. 1014, 1020-1021, 408
S.E.2d 252, 255 (1991).
Our decision is limited in scope; it addresses only those cases where a partially
incapacitated employee is furloughed. The five factors we developed are not rules. They are
suggestions for analyzing, as we wrote above, “the fundamental issue in these cases: is any wage
loss causally related to the injury?”
In Vega v. Jwayyed, 218 Va. 1026, 1032, 243 S.E.2d 228, 231 (1978), the Virginia
Supreme Court wrote, “although we have repeatedly held that the provisions of the Workmen’s
Compensation Act are to be liberally construed, the Commission’s ruling would engraft upon the
Act a provision for unemployment insurance which could not be sustained.”
That reasoning applies in this case. Claimant has not demonstrated that his lost wages
were causally related to his injury. Accordingly, he may not look to the provisions of the Act for
recompense. For these reasons, the decision of the commission is reversed and the claim for lost
wages is dismissed.
Reversed and dismissed.
-9-
Petty, J., dissenting.
An injured employee is entitled to receive compensation when his “incapacity for work
resulting from [an] injury is partial . . . during such [period of] incapacity.” Code § 65.2-502.
Today the majority has appended an additional prerequisite to the receipt of compensation—the
employee must also establish that his loss of wages was not due to economic conditions that
similarly impacted able-bodied employees. It then proceeds to announce, out of whole cloth,
five factors to consider in applying its “same economic conditions” test. 4 In doing so, the
majority, in my opinion, ignores both existing precedent and legislative intent and effectively
alters both the spirit and the letter of the Worker’s Compensation Act. Accordingly, I dissent.
I believe that this case is primarily a question of statutory interpretation. This Court
reviews such a question de novo. Town of Waverly Law Enforcement v. Owens, 51 Va. App.
277, 280, 657 S.E.2d 161, 163 (2008). When interpreting a statute, this Court must consider the
statute’s language “to determine the General Assembly’s intent from the plain and natural
meaning of the words used.” Alcoy v. Valley Nursing Homes, Inc., 272 Va. 37, 41, 630 S.E.2d
301, 303 (2006). “[W]ords are to be given their ordinary meaning, unless it is apparent that the
legislative intent is otherwise.” Phelps v. Commonwealth, 275 Va. 139, 142, 654 S.E.2d 926,
927 (2008). And, “[this Court] must assume that ‘the legislature chose, with care, the words it
used when it enacted the relevant statute, and we are bound by those words as we interpret the
statute.’” Rasmussen v. Commonwealth, 31 Va. App. 233, 238, 522 S.E.2d 401, 403 (1999)
(quoting Frazier v. Dep’t of Soc. Servs., Div. of Child Support Enforcement ex rel. Sandridge,
4
The majority has announced five specific factors to consider in the application of its
newly minted wage loss test. Supra at 7. Significantly, however, it fails to point to any portion
of the Act to support these factors, leaving one to conclude that they must have been gleaned
from the “‘penumbras and emanations’ of [the Act].” Carpenter v. Commonwealth, 51 Va. App.
84, 96, 654 S.E.2d 345, 351 (2007) (quoting LaRoche v. Wainright, 599 F.2d 722, 726 (5th Cir.
1979)).
- 10 -
27 Va. App. 131, 135, 497 S.E.2d 879, 881 (1998)). Moreover, it is this Court’s “‘duty . . . to
interpret the several parts of a statute as a consistent and harmonious whole so as to effectuate
the legislative goal.’” Oraee v. Breeding, 270 Va. 488, 498, 621 S.E.2d 48, 52 (2005) (quoting
Va. Elec. & Power Co. v. Bd. of Cnty. Supervisors, 226 Va. 382, 387-88, 309 S.E.2d 308, 311
(1983)). “Thus, [this Court] ‘will look to the whole body of [a statute] to determine the true
intention of each part.’” Ford Motor Co. v. Gordon, 281 Va. 543, 549, 708 S.E.2d 846, __
(2011) (quoting Oraee, 270 Va. at 498, 621 S.E.2d at 52-53).
I find it significant that despite this Court’s obligation to give effect to the intent of the
legislature, the majority barely mentions the language of Code § 65.2-502 or any other section of
the Workers’ Compensation Act. Instead, the majority dwells upon what it perceives as factual
similiarities in several relevant cases without analyzing what those cases have to say precisely
about Code § 65.2-502. As with any question of statutory interpretation, this Court’s inquiry
should begin with the plain language of the statute itself. Surles v. Mayer, 48 Va. App. 146, 163,
628 S.E.2d 563, 571 (2006).
Under Code § 65.2-502, a claimant receives a payment designed to offset his “incapacity
for work resulting from [his] injury” by paying him two thirds of the difference between his
pre-injury average weekly wage and “the average weekly wage which he is able to earn
thereafter.” 5 (Emphasis added). This compensation is to be paid “during such incapacity.” Id.
(emphasis added). In lieu of these payments, however, the employer may provide his employee
with selective employment—that is, a job the employee can perform even though partially
5
The section goes on to describe a process for calculating the claimant’s average weekly
wage after the injury under certain special circumstances. See Code § 65.2-502(A) (setting forth
an elaborate formula for calculating the average weekly wage after the injury in the presence of
potentially volatile income earned by or from “commissioned employees, self-employed income,
and income derived from an employer in which the injured worker or their immediate family has
an ownership interest”).
- 11 -
disabled, at wages equal to his previous wage. See Metro Mach. Corp. v. Lamb, 33 Va. App.
187, 196-97, 532 S.E.2d 337, 341 (2000). In such a case, the employee is not entitled to
compensation—not because he is no longer suffering a disability, but because the difference
between his pre-injury wages and the amount he is able to earn subsequent to the injury is zero.
See id. However, once the employer ceases—for whatever reason—to take advantage of this
accommodation, it must return to paying benefits to the worker so that he continues to receive
payment for his pre-existing diminished earning capacity. Id.
This Court has already recognized these principles in Metro Mach. Corp. v. Lamb.
There, this Court addressed an argument very similar to that presented by the employer in this
case—that an employee, who was laid off from his light-duty employment as the result of a plant
shutdown, and not as the result of a work-related injury, was not entitled to benefits due to the
shutdown. Id. at 196, 532 S.E.2d at 341. This Court firmly rejected that argument, stating:
The employer’s reasons for the layoff should not diminish the
employee’s entitlement to benefits. The employee was injured on
the job and his capacity to work reduced. The Workers’
Compensation Act “is highly remedial and should be liberally
construed to advance its purpose . . . [of compensating employees]
for accidental injuries resulting from the hazards of the
employment.” See Henderson v. Central Tel. Co., 233 Va. 377,
382, 355 S.E.2d 596, 599 (1987) (citations omitted). Until the
employee can perform at his pre-injury capacity, he is protected
from the economic vicissitudes of the market place.
Id. at 196-97, 532 S.E.2d at 341 (emphases added). Accordingly, “[a]fter an economic layoff
from selective employment, an employee remains entitled to benefits until he either fully
recovers and is released to pre-injury work, or until the employer offers him other selective
employment.” Id. at 196, 532 S.E.2d at 341. Thus, this Court held that “the employee’s layoff
due to the employer’s economic downturn does not preclude his entitlement to disability
benefits.” Id. at 197, 532 S.E.2d at 341.
- 12 -
Given our decision in Lamb, I can see no reason why we ought to do anything but affirm
the commission’s award of benefits in this case. The majority acknowledges the fact that
Testerman is a “partially incapacitated employee,” supra at 9, but simply does not think it a good
policy to give what it views as a windfall payment for wages to an employee that the employee
would not have otherwise earned even if he had not suffered an industrial injury. The entire
purpose of the majority’s new test is to give effect to this policy decision. Yet, the legislature
made a certain policy choice, and it is that decision we must honor. That policy compensates an
injured employee for his diminished earning capacity. See, e.g., J.A. Foust Coal Co. v. Messer,
195 Va. 762, 765-66, 80 S.E.2d 533, 535 (1954) (stating that an employer must pay benefits for
partial incapacity to compensate a worker for his “loss of earning power,” or “the impairment of
the claimant’s earning capacity” (emphases added)); Bay Concrete Constr. Co. v. Davis, 43
Va. App. 528, 539, 600 S.E.2d 144, 150 (2004) (explaining that partial incapacity benefits are
calculated by considering the average weekly wage the claimant “is able to earn” (emphasis
added)); Pilot Freight Carriers v. Reeves, 1 Va. App. 435, 441, 339 S.E.2d 570, 573 (1986)
(stating that benefits under Code § 65.1-55 (now Code § 65.2-502) cover “losses occasioned by
the impairment of the claimant’s earning capacity” (emphasis added)).
By paying an injured employee for his diminished earning capacity, the legislature
necessarily chose not to make the worker whole for wages that his industrial injury otherwise
prevented him from earning, as the majority’s theory suggests, but instead chose to pay him for a
more abstract loss. See Pilot Freight Carriers, 1 Va. App. at 440, 339 S.E.2d at 572. This Court
explained this distinction in Pilot Freight Carriers. It first recognized that “[t]he degree of
disability under Code § 65.1-55 [now Code § 65.2-502] is determined by comparing average
weekly wages which the employee actually earns before the injury and the average weekly wage
- 13 -
that he is able to earn after the injury.” Id. Quoting an earlier version of the same treatise cited
by the majority, this Court then stated that:
“It is at once apparent that the two items in the comparison are not
quite the same. Actual earnings are a relatively concrete
quantity . . . . Earning capacity, however, is a more theoretical
concept. It obviously does not mean actual earnings, since the
legislature deliberately chose a different phrase for the post-injury
earnings factor . . . . But the concept of wages he ‘is able’ to earn
cannot mean definite actual wages alone, especially in the absence
of a fixed period of time within which post-injury wages are to be
taken as controlling.”
Id. (alterations in original) (quoting 2 A. Larson, The Law of Workmen’s Compensation § 57.21
(1980)). 6
Indeed, the cases cited by the majority acknowledge that economic conditions do not
prevent a claimant from receiving compensation for his diminished earning capacity, even if
those economic conditions result in the claimant’s unemployment. Metro Mach. Corp. v.
Sowers, 33 Va. App. 197, 210, 532 S.E.2d 341, 347 (2000) (stating 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’” (quoting Consol.
Stores Corp. v. Graham, 25 Va. App. 133, 137, 486 S.E.2d 576, 578 (1997))); Carr v. Va. Elec.
6
Other states with statutes similar to Code § 65.2-502 have recognized this same
distinction between lost wages and loss of earning capacity. See, e.g., Hendricks v. Am. Stores,
809 P.2d 1076, 1078 (Colo. 1990) (stating that Colorado pays temporary partial disability
benefits based on a worker’s “impairment of his earning capacity,” which “means the loss of
ability to earn, not simply lost wages”); Harle v. Work. Comp. App. Bd., 658 A.2d 766, 769 (Pa.
1995) (stating that Pennsylvania pays partial disability benefits based on the “earning power” of
the employee after his injury, which may be different than the amount “the employee is receiving
in actual wages after the injury”); see also West Point Pepperell v. Green, 252 S.E.2d 55, 56 (Ga.
Ct. App. 1979) (holding that compensation should not be denied based on a plant shutdown in
light of the fact that Georgia determines partial disability benefits based on “the difference
between [a worker’s] average weekly wage before the injury and the average weekly wage she
was able to earn thereafter”); cf. Shaw Indus. Inc. v. Shaw, 586 S.E.2d 80, 82 (Ga. App. Ct.
2003) (suggesting that the worker’s “actual post-injury wages” are relevant, although not
necessarily dispositive, to determine the amount a worker is “able to earn” after being injured).
- 14 -
& Power Co., 25 Va. App. 306, 487 S.E.2d 878 (1997) (stating that “‘[t]he threshold test for
compensability is whether the employee is able fully to perform the duties of his pre-injury
employment’” (quoting Celanese Fibers Co. v. Johnson, 229 Va. 117, 120, 326 S.E.2d 687, 690
(1985)) (emphasis added)). 7 The majority asserts that these cases stand for the proposition that
an unemployed claimant’s entitlement to benefits under Code § 65.2-502 depends upon the
causal relationship between the unemployment and the claimant’s industrial injury, as
determined by the wage loss suffered by the claimant in relation to similarly situated
non-restricted employees. Supra at 8-9.
The majority misunderstands these cases. These cases make such a comparison not
because such a causal relationship is required under the statute, but because such a comparison
appropriately demonstrated the extent of the claimant’s incapacity for work, or his inability to
earn wages, in those particular cases. See Sowers, 33 Va. App. at 208-09, 532 S.E.2d at 347;
Graham, 25 Va. App. at 136-37, 486 S.E.2d at 577-78; Carr, 25 Va. App. at 310-12, 487 S.E.2d
at 880-81. In every one of those cases, this Court affirmed the commission’s award of benefits
to the claimant despite the fact that, due to economic conditions, the injured employee suffered
no wage loss over and above the wage loss of other employees; rather, the injured employee in
each of those cases had a diminished earning capacity as the result of his industrial injury, and
that is what entitled him to benefits. See Sowers, 33 Va. App. at 208-09, 532 S.E.2d at 347;
Graham, 25 Va. App. at 136-37, 486 S.E.2d at 577-78; Carr, 25 Va. App. at 310-12, 487 S.E.2d
7
The majority also cites Rodriguez v. Stouffer Concourse Hotel, No. 160-73-71, 1998
VA Wrk. Comp. LEXIS 3984 (Dec. 21, 1998), in support of its conclusion. My response is
two-fold. First, we are not bound by opinions of the commission. NiSource, Inc. v. Thomas, 53
Va. App. 692, 711, 674 S.E.2d 581, 591 (2009). Second, and more importantly, the commission
itself, in this very case, has abandoned the reasoning expressed in Rodriguez in light of our more
recent controlling opinions in Sowers and Lamb. See Testerman v. Util. Trailer Mfr. Co., No.
226-77-65, 2010 VA Wrk. Comp. LEXIS 290, at *3-4 (June 9, 2010) (analyzing this Court’s
decision in Sowers in making its decision).
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at 880-81. Because we affirmed the awards of benefits in those cases, precedent directs that we
do the same in this case.
I am further persuaded that today’s decision by the majority is in error because it is
inconsistent with our case law interpreting Code § 65.2-500. This is significant because Code
§ 65.2-500 pays benefits based on total “incapacity for work,” just as Code § 65.2-502 pays
benefits based on partial “incapacity for work.” Thus, these two sections differ only in the
degree of incapacity for which they compensate the claimant, not the policy upon which the
award is based. See, e.g., Pilot Freight Carriers, 1 Va. App. at 441, 339 S.E.2d at 573
(explaining that partial incapacity benefits and total incapacity benefits both “cover losses
occasioned by the impairment of the claimant’s earning capacity”). This Court has already held
that a claimant is entitled to benefits for total incapacity even though it could not be said that, but
for his injury, the claimant lost wages. Allegheny Airlines v. Merillat, 14 Va. App. 341, 344-45,
416 S.E.2d 467, 469-70 (1992). In Allegheny Airlines, this Court explicitly rejected an
employer’s contention “that Code § 65.1-54 [(now Code § 65.2-500)] requires wage loss [as the
result of an industrial injury],” holding that the statute “contains no such requirement.” Id. at
344-45, 416 S.E.2d at 469-70. Instead, “compensation under [Code] § 65.2-500 is predicated
upon the effect of the injury on the [claimant’s] capacity to earn wages.” 8 Lawrence J. Pascal,
Virginia Workers’ Compensation, Law and Practice § 5.05 (3d ed. 2000) (citing to Allegheny
Airlines generally).
Since the theory for payment under Code §§ 65.2-500 and 65.2-502 is the same, we
should read the two sections in harmony. Indeed, by holding as it does today, the majority
8
At oral argument, the employer agreed that had Testerman been receiving temporary
total disability benefits instead of working a light-duty job, he would have been entitled to
receive compensation throughout the layoff.
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creates a peculiar scheme. If a claimant has absolutely no ability to work, he is entitled to
benefits even if he cannot prove that, but for his injury, he would have continued to earn the
same (or any) wages after his injury. See Code § 65.2-500; Allegheny Airlines, 14 Va. App. at
344-45, 416 S.E.2d at 469-70. However, if a claimant has a partial incapacity for work resulting
from an industrial injury, he is not entitled to benefits for that partial incapacity unless he can
prove that, but for his injury, he would have otherwise continued to receive wages. This
inconsistency, of course, never arises if Code §§ 65.2-500 and 65.2-502 are read harmoniously,
as this Court is obligated to do. See Oraee, 270 Va. at 498, 621 S.E.2d at 52.
For these reasons, I cannot adopt the majority’s view. Therefore, I must also reject the
majority’s additional rule that a claimant must prove his disability was the reason he was unable
to market his remaining capacity for work. 9 Instead of the rule espoused by the majority today, I
would consider the commission’s award of benefits in light of its well-established role as
fact-finder to “compare the claimant’s pre-injury average weekly wage to the wage he is able to
earn after the injury to determine whether he is entitled to total or partial disability benefits and,
if so, at what rate.” 10 Bay Concrete Constr. Co., 43 Va. App. at 539, 600 S.E.2d at 150. Finally,
in reaching this conclusion, I am ever mindful of the fact that
9
I must note that a claimant’s initial entitlement to benefits under Code § 65.2-502,
despite economic conditions that preclude actual wage loss, should not be confused with the
separate question as to whether the claimant has subsequently lost his entitlement to those
benefits by failing to take reasonable efforts to market his residual work capacity. See Herbert
Bros., Inc. v. Jenkins, 14 Va. App. 715, 717, 419 S.E.2d 283, 284 (1992) (“In order to continue
to receive benefits under the Workers’ Compensation Act, a claimant who has been injured in a
job-related accident must market his remaining capacity to work.”) Of course, since the parties
stipulated that the claimant here had reasonably marketed his residual capacity, there is no need
to analyze this issue.
10
Here, the claimant testified that he had continued to work while the plant was shut
down during prior inventories and that some of his co-workers remained employed during this
shutdown. The majority, however, has chosen to adopt those facts that support its conclusion by
accepting the competing testimony of the claimant’s manager, supra at 2, despite this Court’s
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the purpose of the Workers’ Compensation Act is to provide
compensation to an employee for the loss of his opportunity to
engage in work, when his disability is occasioned by an injury
suffered from an accident arising out of and in the course of his
employment. The Act should be liberally construed in harmony
with its humane purpose.
Sowers, 33 Va. App. at 209, 532 S.E.2d at 347 (quoting U.S. Air, Inc. v. Joyce, 27 Va. App. 184,
189, 497 S.E.2d 904, 906 (1998)).
Here, the commission determined that Testerman was incapable of performing his
original duties due to a work-related injury, resulting in a diminished earning capacity.
Accordingly, he was entitled to compensation. The employer was permitted to terminate that
compensation when it provided him selective employment consistent with his incapacity at his
previous wage. The employer then, for its own economic benefit, ended that selective
employment. However, “[a]fter an economic layoff from selective employment, [such] an
employee remains entitled to benefits until he either fully recovers and is released to pre-injury
work, or until the employer offers him other selective employment.” Lamb, 33 Va. App. at 196,
532 S.E.2d at 341. Because neither alternative is the case here, I conclude that Testerman was
entitled to a reinstatement of compensation for his injury. Therefore, I would affirm the
commission.
obligation to examine the facts in the light most favorable to the claimant, who prevailed below.
Crisp v. Brown’s Tyson’s Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986).
Nevertheless, the facts, as they are, seem to require further examination by the fact-finder to
evaluate the new factors listed by the majority. Thus, even if I were to agree with the rule set by
the majority, I would still remand for further proceedings because of the fact-finding necessarily
required by that rule.
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