COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Hodges
Argued at Alexandria, Virginia
GREAT NORTHERN NEKOOSA CORPORATION AND
EMPLOYERS INSURANCE OF WAUSAU
OPINION BY
v. Record No. 0228-01-4 JUDGE ROSEMARIE ANNUNZIATA
OCTOBER 23, 2001
LARRY L. WOOD
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Susan A. Evans (Siciliano, Ellis, Dyer &
Boccarosse, on brief), for appellants.
Joseph T. Trapeni, Jr. (Trapeni, Romero &
Morrison, P.C., on brief), for appellee.
The appellants, Great Northern Nekoosa Corporation and
Employers Insurance of Wausau, appeal the decision of the
Workers' Compensation Commission to award benefits to Larry L.
Wood, pursuant to Code § 65.1-56(18), the statute in effect at
the time of the accident, upon finding he is permanently
unemployable in gainful employment. For the reasons that follow,
we affirm.
I.
BACKGROUND
On appeal, we review the evidence, together with all
reasonable inferences that may be drawn, in the light most
favorable to Wood, the party prevailing before the commission.
Great Eastern Resort Corp. v. Gordon, 31 Va. App. 608, 610, 525
S.E.2d 55, 56 (2000). Wood was injured on December 30, 1988,
while working as a maintenance mechanic for Great Northern
Nekoosa Corporation (employer). He was then thirty-seven years
old. While he assisted in changing a 3/4 inch steel crane cable,
the cable slipped and fell on Wood's face, causing him to fall
from his position on top of a truckload of logs, twelve to
fourteen feet to the concrete roadway. He was diagnosed with a
closed brain injury, right frontal intracerebral hematoma, a
basilar skull fracture with multiple air/fluid levels, a
contusion to the right side of the face, multiple fractures to
the face and right orbit, chest and neck trauma, aspiration
pneumonities and pulmonary contusion, and pneumonia. The claim
was accepted as compensable, resulting in a total of five hundred
weeks of compensation benefits pursuant to various awards.
Subsequently, Wood sought an award of permanent total
compensation benefits pursuant to Code § 65.1-56(18).
After several years of medical treatment, the employer
offered Wood a part-time position as a work order processor,
which required him to process work orders using a computer
software package by entering information into the computer
database from card files. The position had previously been
filled by college students on a part-time basis, but had been
eliminated in August 1992. The job was revived and modified for
Wood. The job was obtained for Wood by a vocational
rehabilitation specialist and was approved by his treating
physician and treating psychologist. Wood performed fewer than
one-half the job tasks required of the last employee in the
position. Wood testified that he obtained this position because
"this was the only thing they could find that I might be capable
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of doing." He earns $8.59 per hour and certain fringe benefits,
including holiday pay, vacation pay, health insurance and a
retirement plan. Although the job was approved for sixteen hours
per week, Wood was only scheduled to work twelve hours per week
and, in fact, worked even fewer hours than assigned because of
the fatigue and severe headaches he suffered. Furthermore, he
often cannot perform his assigned tasks. In his stead, his
supervisor performs those tasks when those tasks are important.
Wood performs them when he is able.
Marsha Hoexter, an expert in vocational rehabilitation,
basing her conclusions on the medical, psychological and
rehabilitation reports, testified that "there are not any jobs
out in the competitive labor market that [Wood] would be
considered for." She concluded that employers in the competitive
market would not be as accommodating as the employer such that
Wood could maintain a position elsewhere. Richard J. Milan, Jr.,
Ph.D., concluded that
the objective and psychometric evidence and
collateral reports converge to strongly
indicate that this gentleman is effectively
disabled by the residual effects of his work
related traumatic brain injury. He requires
special accommodations to work even part-time
and is unable to sustain anything approaching
full-time employment in a competitive work
environment.
The commission concluded that Wood was not employable in
gainful employment and, thus, is totally and permanently
incapacitated. It entered an award in his favor for $362 per
week beginning July 30, 1998. It is from that decision that the
employer appeals.
II.
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Analysis
Code § 65.1-56(18) of the Workers' Compensation Act
provided, inter alia, that:
[A]n injury to the brain which is so severe
as to render the employee permanently
unemployable in gainful employment, shall
constitute total and permanent incapacity, to
be compensated according to the provisions of
Section 65.1-54.
The commission found that because the employer revived and
modified the position to meet Wood's needs and not out of
business necessity, his employment did not constitute "gainful
employment." Employer contends (1) that the commission too
narrowly defined "gainful employment" and (2) that Wood's
position is beneficial to the employer. Employer argues that
Wood does not meet this definition because he is and has been
gainfully employed since January 11, 1993. We disagree.
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A. The Legal Definition of "Gainful Employment"
The phrase "unemployable in gainful employment" is not
defined in the Act. Therefore, the commission determined that
gainful employment is employment that is
beneficial to both the worker performing the
job, as well as the employer providing the
opportunity. It is not a position that is
specifically created for the injured
worke[r] in the absence of a pre-existing
need of the employer. It is not a position
created by the employer by transferring work
duties from other workers for no apparent
business purpose, where the end result is
that the same work is performed and there is
an increase in labor cost without a
concomitant business benefit for the
employer. Gainful employment results in
profits and benefits both for the worker and
the employer.
The issue of whether the commission erred in finding that
Wood was "unemployable in gainful employment," implicates a core
question of first impression in Virginia. The commission's
description of "gainful employment" is a conclusion of law that
is not binding on this Court. Thomas Refuse Service v. Flood, 30
Va. App. 17, 20, 515 S.E.2d 315, 317 (1999). "However, the
commission's construction of the Workers' Compensation Act is
entitled to great weight on appeal." Id. (citing Wiggins v.
Fairfax Park Ltd., 22 Va. App. 432, 441, 470 S.E.2d 591, 596
(1996)). We now adopt the commission's description of "gainful
employment."
"It is a well established rule of construction that a
statute ought to be interpreted in such a manner that it may have
effect, and not found to be vain and elusive. Every
interpretation that leads to an absurdity ought to be rejected.
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It is our duty to give effect to the wording of the statute, and
allow the legislative intention to be followed." Barnett v. D.L.
Bromwell, 6 Va. App. 30, 34, 366 S.E.2d 271, 273 (1988) (quoting
McFadden v. McNorton, 193 Va. 455, 461, 69 S.E.2d 445, 449
(1952)).
To constitute total incapacity, a brain injury must render
an individual "unemployable in gainful employment." The phrase
"gainful employment" must, therefore, have some meaning beyond
"any" employment.
We hold that the commission's interpretation of the phrase,
"unemployable in gainful employment," is consistent with the
statutory purpose and that it properly determined that Wood was
totally and permanently incapacitated, in accordance with that
interpretation. A definition of "gainful employment" in this
context that does not consider the labor market and the
motivations of a potential employer would swallow the rule such
that any brain injury no matter how severe would be
noncompensable if one employer were willing to hire an individual
for non-business reasons, such as compassion. Under such a
definition, that person would be "employable in gainful
employment" and ineligible for total disability benefits. The
limitation to "gainful" employment would be rendered meaningless.
While the Virginia appellate courts have not addressed the
issue previously, we find that the definition adopted by the
commission is supported by the decision of the Virginia Supreme
Court in Atlantic Life Insurance Co. v. Worley, 161 Va. 951, 959,
172 S.E. 168, 171 (1934), in which the court addressed analogous
issues. In its consideration of the phrase "total and permanent
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disability" in the context of insurance policy coverage, the
Virginia Supreme Court rejected an interpretation of the phrase
that disallowed benefits if the individual could engage in "any
occupation whatsoever." Id. The Supreme Court defined "total
and permanent disability" as the inability to perform work for
profit "in substantially the customary and usual manner in which
such occupation is prosecuted." Id. at 960, 172 S.E. at 172. 1
The Supreme Court's definition, like the commission's definition,
implies that the employer needs the employee as it would need any
other employee to perform the tasks of the occupation. In short,
the employment of a claimant has a business purpose.
In adopting the commission's definition of "gainful
employment," we are also persuaded by Professor Larson's
so-called "odd-lot" doctrine. 2 Professor Larson defines
"odd-lot" workers as within the category of the totally disabled:
[T]otal disability may be found in the case
of workers who, while not altogether
incapacitated for work, are so handicapped
that they will not be employed regularly in
any well-known branch of the labor market.
The essence of the test is the probable
dependability with which claimant can sell
1
The Supreme Court subsequently relied on its definition in
Worley in two worker's compensation cases concerning the loss of
use of two members. See Borden, Inc. v. Norman, 218 Va. 581,
586, 239 S.E.2d 89, 92 (1977) (adopting the Worley definition of
total and permanent incapacity to determine the propriety of an
award under former Code § 65.1-56(18) of the Workers'
Compensation Act); Virginia Oak Flooring Co. v. Chrisley, 195 Va.
850, 80 S.E.2d 537 (1954) (adopting the same definition of "total
and permanent loss" in the context of former Code § 65-53(18) of
the Virginia Workers' Compensation Act).
2
The term "odd-lot" refers to a worker who is "so
substantially disabled as to be unable to find stable
employment, and thus is considered totally disabled and entitled
to worker's compensation benefits under the odd-lot doctrine."
Black's Law Dictionary 1107 (7th ed. 1999).
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his or her services in a competitive labor
market, undistorted by such factors as
business booms, sympathy of a particular
employer or friends, temporary good luck, or
the superhuman efforts of the claimant to
rise above crippling handicaps.
Arthur Larson & Lex K. Larson, 4 Larson's Workers' Compensation
Law § 83.01 (2001) (emphasis added). Most states considering the
issue have incorporated Professor Larson's concept. See, e.g.,
Ellenburg v. Jim Walter Resources, 680 So.2d 282, 285 (Ala. Civ.
App. 1996) (defining a totally disabled employee as one "who is
so injured that he can perform no services other than those
which are so limited in quality, dependability, or quantity that
a reasonably stable market for them does not exist"); Port
Everglades Terminal Co. v. Canty, 120 So.2d 596, 600 (Fl. 1960)
(same); Gunderson v. City of Ashland, 701 S.W.2d 135, 136 (Ky.
1985) (adopting Larson's definition); Johnson v. Fidelity &
Casualty Ins. Co. of New York, 618 So.2d 651, 654 (La. Ct. App.
1993) (an employee is totally disabled when his "services are so
limited in quality, dependability or quantity that a reasonably
stable market for his services does not exist"); Bullis School
v. Justus, 377 A.2d 876, 880 (Md. Ct. Spec. App. 1977) (same);
Mastellar v. Nelson Co-op Creamery, 216 N.W.2d 836, 837 (Minn.
1974) (same); Tee v. Albertsons, Inc., 842 P.2d 374, 378 (Or.
1992) (finding that permanent and total disability status
depends on one's ability to "sell his services on a regular
basis in a hypothetically normal labor market") (subsequently
modified by statute).
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B. Sufficiency of the Evidence
We further find no merit in the employer's contention that
the evidence fails to support the commission's finding that
Wood's employer did not have a business purpose for creating his
position and that he was not employable in a competitive labor
market. The employer contends on appeal that Wood did not prove
that the work order processor position was created without a
business purpose. It further argues the commission relied upon
speculative evidence presented by Marsha Hoexter, a vocational
rehabilitation counselor. We disagree.
We do not retry the facts before the
Commission nor do we review the weight,
preponderance of the evidence, or the
credibility of witnesses. If there is
evidence or reasonable inference that can be
drawn from the evidence to support the
Commission's findings, they will not be
disturbed by this Court on appeal . . . .
Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d
507, 510 (1983).
In the instant case, Wood presented ample evidence from
which the commission could reasonably conclude that the employer
did not revive and modify the work order processor position for a
business purpose. Wood performed fewer than one-half the job
tasks required of the last employee in the position. He
testified that he obtained this position because "this was the
only thing they could find that I might be capable of doing."
Moreover, although the job was approved for sixteen hours per
week, Wood was only scheduled to work twelve hours per week, and,
in fact, worked even fewer hours than assigned due to fatigue and
severe headaches. Finally, the evidence shows that Wood is often
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unable to perform his assigned tasks and that, when those tasks
are important, either his supervisor performs them or Wood
performs them at a time when he is able.
The commission also considered the testimony of Hoexter who,
in part, testified that "there are not any jobs out in the
competitive labor market that [Wood] would be considered for" and
that employers in the competitive market would not be as
accommodating as the employer such that Wood could maintain a
position elsewhere. We disagree with the employer's claim that
the commission improperly relied on Hoexter's expert testimony.
The credibility of an expert witness and the weight to be
accorded the evidence are matters within the province of the
commission, the fact finder in the instant case. Georgia-Pacific
Corp. v. Dancy, 24 Va. App. 430, 439, 482 S.E.2d 867, 871 (1997)
(citing Horsley v. Commonwealth, 2 Va. App. 335, 339, 343 S.E.2d
389, 391 (1986)). However, an expert's opinion must be supported
by facts within his or her knowledge or established by other
evidence. Waynesboro Police v. Coffey, 35 Va. App. 264, 271, 544
S.E.2d 860, 863 (2001) (citing Gilbert v. Summers, 240 Va. 155,
160, 393 S.E.2d 213, 215 (1990)). In the instant case, the
expert relied on facts in evidence and facts gathered by her own
investigation to reach her conclusion. Hoexter indicated that
she met with Wood and his wife, reviewed his medical records
including a neuropsychological evaluation, and a report by
Rehabilitative Services and Vocational Placement, Inc. The
commission, therefore, was entitled to consider and give due
weight to Hoexter's testimony.
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Because we find the evidence sufficient to support the
commission's finding that Wood was "unemployable in gainful
employment," defined as requiring a business purpose, we affirm.
Affirmed.
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