COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Fitzpatrick and
Senior Judge Duff
Argued at Alexandria, Virginia
DAVEY TREE EXPERT SERVICE COMPANY
AND
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY
OPINION BY
v. Record No. 1892-94-4 JUDGE CHARLES H. DUFF
MAY 9, 1995
MORRIS ALLEN ACUFF
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Robert C. Baker, Jr. (Mell, Brownell & Baker, on
brief), for appellants.
Nikolas E. Parthemos (Prosser, Parthemos & Bryant,
P.C., on brief), for appellee.
Davey Tree Expert Service Company ("Davey Tree" or
"employer") and its insurer appeal a decision of the Workers'
Compensation Commission awarding temporary partial disability
benefits to Morris Allen Acuff (claimant). Finding no error, we
affirm the commission's decision.
The facts are undisputed. On June 6, 1989, claimant
suffered a compensable right ankle injury while working for Davey
Tree as a sales service technician, earning an average weekly
wage of $482.46. Claimant's job entailed spraying and
fertilizing trees and shrubs, and general lawn care. On February
1, 1990, claimant returned to his regular pre-injury work. He
performed all of the duties of his pre-injury work until March
1992, when he voluntarily resigned from his job with Davey Tree.
Claimant testified that he resigned in order to take a full-time
1
position with Preston County Senior Citizens, Inc. ("Preston") as
a dispatcher. He stated that he took the dispatcher's job
because it was closer to his home, the work was easier, and there
were no seasonal layoffs. He admitted that he did not resign
from his job with Davey Tree due to any doctor's orders. The
dispatcher's job paid an average weekly wage of $280.
On April 3, 1992, claimant suffered an injury at home to his
left ankle. In its February 4, 1993 opinion, the commission
determined that this injury was a compensable consequence of
claimant's June 1989 work-related injury. The employer did not
appeal this decision. In April 1993, claimant underwent left
ankle surgery, and the employer paid him temporary total
disability benefits beginning April 6, 1993, based upon his
income with Davey Tree. On June 14, 1993, claimant returned to
his regular, full-time duties as a dispatcher for Preston. His
dispatcher job did not require walking and primarily involved
desk work. At the time of his June 1993 release to return to
work, claimant was placed under restrictions, which would have
prevented him from returning to his pre-injury job with Davey
Tree.
In August 1993, the employer filed an application seeking to
terminate the temporary total compensation benefits being paid as
the claimant had returned to work for Preston. The claimant also
filed for a hearing to change the outstanding temporary total
award to temporary partial disability based upon the difference
2
between his wages at Davey Tree and those he was earning at
Preston. Employer argued that claimant's wage loss was caused by
his voluntary act of resigning from his pre-injury job prior to
the 1992 compensable consequence injury. Employer further
asserted that, because claimant was able to return to full-time
employment with Preston following the 1992 compensable
consequence injury, he was not entitled to temporary partial
disability benefits. Claimant contended that he was entitled to
an award of temporary partial disability benefits, because, as a
result of the 1992 compensable consequence injury, he no longer
had the capacity to perform all of the duties of his pre-injury
job with Davey Tree.
In awarding temporary partial disability benefits to
claimant, the commission found as follows:
In the case of partial incapacity
resulting from a work injury, § 65.2-502
mandates that compensation be paid to a
claimant based on the difference between the
average weekly wage before the injury and the
average weekly wage that he is able to earn
thereafter. Although post-injury earnings is
the "best evidence" of the claimant's ability
to earn, it is not the only factor that can
be considered. Sorrell v. Westinghouse Elec.
Corp., 48 O.I.C. 225. Clearly, however, the
comparison to be made is between the job at
which the claimant was engaged at the time of
his injury versus what he is capable of doing
after he has recovered from the injury and
its compensable consequences. If in this
case, claimant had recovered from the [1992]
"compensable consequence injury" to the point
that he could return to his pre-injury job
with Davey Tree, then the claimant's current
wage loss would continue to be due to his
voluntary act rather then the work injury.
However, the evidence is undisputed that the
3
claimant cannot return to his pre-injury work
unless employer agrees to accommodate his
restrictions. No evidence exists in the
record that such an offer of accommodation
was ever made. 1
Our standard of review is as follows:
This appeal does not present a case of
conflicting evidence or a dispute concerning
the commission's findings of fact. When the
issue is the sufficiency of the evidence and
there is no conflict in the evidence, the
issue is purely a question of law. This
Court is not bound by the legal
determinations made by the commission. "[W]e
must inquire to determine if the correct
legal conclusion has been reached."
Cibula v. Allied Fibers & Plastics, 14 Va. App. 319, 324, 416
S.E.2d 708, 711 (1992) (quoting City of Norfolk v. Bennett, 205
Va. 877, 880, 140 S.E.2d 655, 657 (1965)) (other citations
omitted), aff'd, 245 Va. 337, 428 S.E.2d 905 (1993).
Code § 65.2-502 provides for temporary partial disability
benefits equal to two-thirds of the difference between a
claimant's average weekly wage before the work-related injury and
the average weekly wage which he is able to earn thereafter.
(Emphasis added.)
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
1
The commission noted that had the employer offered claimant a
position of any kind, and had claimant refused that job, then its
decision might have been different. However, no evidence was
presented to the commission that, had claimant still been employed
by employer at the time of his 1992 injury, employer would have
provided him work within his restrictions subsequent to his
recovery from that injury.
4
of and in the course of his employment. The
Act should be liberally construed in harmony
with its humane purpose.
Barnett v. D.L. Bromwell, Inc., 6 Va. App. 30, 33-34, 366 S.E.2d
271, 272 (1988) (en banc) (citations omitted).
The commission's legal conclusions, based upon its
undisputed findings of fact, are consistent with the plain
meaning of Code § 65.2-502 and the overall purpose of the
Workers' Compensation Act.
Prior to his 1992 compensable consequence injury, claimant
was not restricted from performing any of the duties required of
him in his job with Davey Tree. Claimant had voluntarily
resigned from that job and was no longer receiving disability
benefits. After the 1992 compensable consequence injury and
claimant's subsequent surgery in April 1993, claimant was
released to return to his regular full-time work for Preston.
However, he was placed under restrictions which would have
prevented him from performing all of the duties required of him
in his pre-injury work for Davey Tree. Thus, the commission
correctly determined that claimant was entitled to temporary
partial disability benefits to compensate him for this loss of
capability to engage in his pre-injury work. The loss was caused
by claimant's 1992 compensable consequence injury and subsequent
surgery, not by his voluntary resignation from his job with Davey
Tree.
The employer incorrectly focuses upon the fact that claimant
5
was able to perform his full-time dispatcher duties without
restriction at the time of his June 1993 release. Employer's
argument fails to recognize that claimant suffered a wage loss
because, if he desired to do so, he was no longer physically able
to perform his pre-injury work. Claimant's ability to earn a
higher average weekly wage was impaired due to the compensable
consequence injury and not to his voluntary resignation.
Therefore, the commission did not err in awarding compensation
benefits to claimant.
The cases cited by employer are distinguishable from this
case. In Yager v. Noah P. Turner Landscaping, Inc., 68 O.I.C. 7
(1989), the claimant was offered a job which would have paid more
than his pre-injury work. For reasons unrelated to his injury,
the claimant refused the offer and accepted a lower paying job
elsewhere. In this case, no evidence was presented that employer
offered claimant a job within his restrictions after his 1992
compensable consequence injury and subsequent recovery.
Moreover, contrary to employer's assertion in its brief, no
evidence proved that claimant's voluntary resignation precluded
employer from offering him a modified position.
In Baskerville v. Saunders Oil Co., Inc., 1 Va. App. 188,
336 S.E.2d 512 (1985); Raffield v. Prince William County Sch.
Bd., 62 O.I.C. 362 (1983); and Sorrell v. Westinghouse Elec.
Corp., 48 O.I.C at 226, the claimants voluntarily removed
themselves from the labor market. There was no evidence of any
6
loss of capacity to earn income, and thus, no compensation was
awarded. In Chesapeake & Potomac Telephone Co. v. Murphy, 12 Va.
App. 633, 406 S.E.2d 190, aff'd en banc, 13 Va. App. 304, 411
S.E.2d 444 (1991), the claimant was denied partial compensation
benefits because he was terminated for cause from selective
employment. Finally, in Eppling v. Schultz Dining
Programs/Commonwealth, 18 Va. App. 125, 442 S.E.2d 219 (1994),
the claimant's wage loss was caused by his wrongful act. None of
these cases are factually similar to this appeal.
For the reasons stated, we affirm the commission's decision.
Affirmed.
7