Dowden v. Hercules, Inc.

JEAN HARRISON CLEMENTS, Judge.

William C. Dowden, Jr. (claimant) appeals a decision of the Virginia Workers’ Compensation Commission (commission) terminating his temporary partial disability benefits. Claimant contends the commission erred in determining he did not partially cure his unjustified refusal of selective employment offered by Hercules, Inc. (employer). For the reasons that follow, we reverse the decision of the commission and remand.

*671I. BACKGROUND

The relevant facts are not in dispute. Claimant began working for employer in 1969. After thirty years of employment, he voluntarily applied for early retirement on August 23, 2000, pursuant to a buy-out offer designed to assist employer in reducing its workforce. On January 31, 2001, while his application for early retirement was pending, claimant injured his back at work. Prior to his injury, claimant earned an average weekly wage of $1,243.64 per week. Upon returning to light-duty work with employer, he earned a wage of $1,002 per week. The commission subsequently awarded claimant temporary partial disability benefits from February 1, 2001, and continuing, at a rate of $161.10 per week.

After claimant returned to light-duty work, he was notified that his application for early retirement had been approved. Claimant accepted employer’s offer of early retirement and retired effective May 1, 2001. Employer continued to pay claimant $161.10 per week in temporary partial disability payments through July 13, 2003. On or around that date, employer discovered claimant had accepted employment as a sales associate with a friend's seafood company on March 10, 2003, earning $200 per week.

On July 24, 2003, employer filed an application with the commission seeking termination or suspension of claimant’s award and credit for benefits paid from March 10, 2003, through July 13, 2003. Employer argued that claimant unjustifiably refused selective employment by voluntarily retiring and that he failed to cure his unjustified refusal. Claimant filed a change-in-condition application on September 5, 2003, seeking a continuation of his temporary partial disability wage-loss benefits of $161.10 per week. Claimant argued that he did not refuse selective employment when he retired, but, if the commission found he did, he cured that refusal on March 10, 2003, when he procured other selective employment.

Finding that claimant’s voluntary retirement constituted an unjustified refusal of selective employment pursuant to Code § 65.2-510(A) and that claimant did not effectuate a cure *672within six months from the date of his retirement as required by Code § 65.2-510(C), the deputy commissioner granted employer’s application and denied claimant’s change-in-condition application. Upon review, the full commission agreed with the deputy commissioner that claimant unjustifiably refused selective employment when he voluntarily retired. It disagreed, however, that Code § 65.2-510(C)’s six-month statute of limitations to cure the unjustified refusal began running on the date of claimant’s retirement. Accordingly, the full commission remanded the case “for determination of the date the claimant’s cure requirement began ... and whether the claimant cured the unjustified refusal.”

On remand, the deputy commissioner determined that, because claimant failed “to report his return to work on March 10, 2003,” Code § 65.2-510(C)’s six-month statute of limitations to cure claimant’s unjustified refusal began to run on that date.1 The deputy commissioner then found that claimant failed to cure his unjustified refusal by September 10, 2003, and, thus, was not entitled to temporary partial disability benefits beyond March 10, 2003. In reaching that decision, the deputy commissioner found that claimant’s employment paying $200 per week did not cure his unjustified refusal of selective employment because it was not comparable to the employment paying $1,002 per week he had refused.

Appealing the deputy commissioner’s decision to the full commission, claimant asserted that his return to work selling seafood on March 10, 2003, constituted a cure of his unjustified refusal of selective employment under Code § 65.2-510(B). He argued that Code § 65.2-510(B) did not require him to obtain employment at a wage “comparable” to the wage he would have earned had he continued the selective employment offered by employer.

A majority of the full commission disagreed with claimant, holding that the employment an injured worker procures *673“must be at a wage comparable to that of the previously refused position” to constitute a cure under Code § 65.2-510. Accordingly, the commission affirmed the deputy commissioner’s decision that claimant failed to cure his unjustified refusal of selective employment, noting as follows: “The claimant was earning $1,002 per week in his selective employment, and after his refusal, he began earning $200 per week. The evidence does not indicate that the employment he procured was comparable and effectuated a cure of his unjustified refusal of selective employment.”

This appeal by claimant followed.

II. ANALYSIS

The sole issue on appeal is whether claimant’s acceptance on March 10, 2003, of selective employment paying $200 per week was sufficient under Code § 65.2-510(B)2 to cure his unjustified refusal of selective employment offered by employer paying $1,002 per week. Relying on this Court’s decisions in Food Lion, Inc. v. Newsome, 30 Va.App. 21, 515 S.E.2d 317 (1999), and Clements v. Riverside Walter Reed Hospital, 40 Va.App. 214, 578 S.E.2d 814 (2003), the commission concluded that claimant’s procurement of the $200-per-week selective employment was not sufficient to cure his unjustified refusal because the wage he earned at that employment was not comparable to the wage he earned at the selective employment offered by employer. We hold that our decision in Hillcrest Manor Nursing Home v. Underwood, 35 Va.App. 31, 542 S.E.2d 785 (2001), and the express language of Code *674§ 65.2-510(B) control the outcome of this case and require the opposite conclusion.

It is well settled that an injured employee who unjustifiably refuses selective employment offered by the employer is not “entitled to receive disability compensation during the continuance of the refusal.” Virginia Wayside Furniture, Inc. v. Burnette, 17 Va.App. 74, 78, 435 S.E.2d 156, 159 (1993); see Code § 65.2-510(A). However, “once an employee has cured an unjustified refusal of selective employment, he ... is entitled to reinstatement of benefits,” Newsome, 30 Va.App. at 25, 515 S.E.2d at 319 (citing Code § 65.2-510), as long as the cure is effectuated within “six months from the last day for which compensation was paid before suspension pursuant to [Code § 65.2-510(A) ],” Code § 65.2-510(C). The calculation of the employee’s benefits following a timely cure depends on whether he fully cured the unjustified refusal or only partially cured it. Compare Newsome, 30 Va.App. at 25-26, 515 S.E.2d at 319-20 (addressing compensation following a full cure under Code §§ 65.2-510 and 65.2-502), with Hillcrest Manor Nursing Home, 35 Va.App. at 37, 39, 542 S.E.2d at 788, 789 (addressing compensation following a partial cure under Code § 65.2-510(B)).

A full cure occurs when the injured employee procures “other selective employment at a wage equal to or greater than” the wage of the refused selective employment. Newsome, 30 Va.App. at 23, 26, 515 S.E.2d at 318, 320. If the employee fully cures his unjustified refusal, he is entitled to “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 ... he is able to earn thereafter Code § 65.2-502 (emphasis added); see Newsome, 30 Va.App. at 25, 515 S.E.2d at 319 (“Once an employee cures an unjustified refusal of employment, Code § 65.2-510 returns the parties to their pre-refusal status, and Code § 65.2-502 obligates the employer to pay partial incapacity benefits.”). Accordingly, we held in Newsome that, although the injured employee was unemployed for seven-and-one-half weeks during the *675post-refusal period for which he sought compensation, because he had already fully cured his refusal and marketed his full residual work capacity during the period of unemployment, the employer’s liability was not limited “to the difference between [the employee’s] refused selective employment wage and his pre-injury wage.” 30 Va.App. at 25-26, 515 S.E.2d at 319-20. In other words, having fully cured his refusal of selective employment, the employee was entitled to compensation for a full cure under Code § 65.2-502(A), rather than compensation for a partial cure under Code § 65.2-510(B).

A partial cure occurs when the injured employee procures other selective employment “‘at a wage less than that originally offered’ ” by the employer. Hillcrest Manor Nursing Home, 35 Va.App. at 37, 39, 542 S.E.2d at 788, 789 (quoting and citing Code § 65.2-510(B)). If the employee partially cures his unjustified refusal, he is entitled to “a weekly compensation equal to 66 2/3 percent of the difference between his average weekly wages before his injury and the average weekly wage the employee would have earned by accepting the original proffered light duty employment.” Code § 65.2-510(B); see Hillcrest Manor Nursing Home, 35 Va.App. at 37, 39, 542 S.E.2d at 788, 789. Accordingly, the employer’s liability under Code § 65.2-510(B) is not based on the difference between the employee’s pre-injury wage and the wage he could or does earn, but rather on the difference between his pre-injury wage and the wage he would have earned had he not refused the selective employment offered by the employer. This approach does not defeat the purposes of Code § 65.2-510—to the contrary, it encourages the injured employee to return to work, any work, and limits the employer’s liability to the same liability it would have had if the employee had not refused the employer’s offer of selective employment.3 See Big D Quality Homebuilders v. Hamilton, *676228 Va. 378, 382, 322 S.E.2d 839, 841 (1984) (“The legislative intent [of Code § 65.1-63 (recodified as Code § 65.2-510) ] is to encourage injured employees to seek selective employment rather than to remain unemployed....”); Food Lion, Inc. v. Lee, 16 Va.App. 616, 619, 431 S.E.2d 342, 344 (1993) (“Code § 65.2-510 was enacted ... to encourage employers to procure employment suitable to partially incapacitated employees.”).

Nothing in Code § 65.2-510(B) limits the application of that subsection to only injured employees who procure selective employment at wages comparable to the wages they would have earned had they not refused the originally offered selective employment. See Britt Construction v. Magazzine Clean, LLC, 271 Va. 58, 62-63, 623 S.E.2d 886, 888 (2006) (“When statutory language is unambiguous, we are bound by the plain meaning of that language. Therefore, when the General Assembly has used words of a definite import, we cannot give those words a construction that amounts to holding that the General Assembly meant something other than that which it actually expressed.” (citations omitted)). Indeed, the only wage-related provision that limits Code § 65.2-510(B)’s application is the subsection’s express requirement that the wage of the selective employment procured by the employee be “less than that originally offered” by the employer. Thus, contrary to the commission’s conclusion, an employer may not escape liability for workers’ compensation benefits under Code § 65.2-510(B) simply because the employee procures selective employment that pays substantially less than the selective employment offered by the employer. See Peacock v. Browning Ferris, Inc., 38 Va.App. 241, 248, 563 S.E.2d 368, 372 (2002) (“[W]e will withhold the deference we normally accord the commission’s statutory interpretation of the Workers’ Compensation Act when the commission’s interpretation conflicts with the plain language of the statute.”); Hillcrest Manor Nursing Home, 35 Va.App. at 39-40, 542 S.E.2d at 789 (applying Code § 65.2-510(B)).

*677In Hillcrest Manor Nursing Home, the claimant suffered a compensable injury by accident that limited her work capacity and prevented her from continuing in her full-time, full-duty position. 35 Va.App. at 34-35, 542 S.E.2d at 787. The employer offered the claimant part-time selective employment, which the claimant accepted. Id. at 35, 542 S.E.2d at 787. Thereafter, the employer offered the claimant full-time selective employment, which the claimant unjustifiably refused. Id. at 35-36, 38, 542 S.E.2d at 787, 789. The claimant continued to work part-time for the employer and took no apparent steps to market her full residual work capacity. Id. at 35-36, 542 S.E.2d at 787. Considering the claimant’s request for benefits for the period following her refusal of the full-time selective employment, the commission determined that the claimant “partially cured her ... [unjustified] refusal of full-time selective employment by simply continuing the part-time, light duty work that predated the offer” of full-time employment. Id. at 39, 542 S.E.2d at 789. “[T]he commission reasoned that, ‘although it was the claimant’s decision to work the reduced hours, the effect was the same as if she, in an attempt to cure, had obtained alternate employment at a reduced wage.’” Id. Thus, the commission awarded the claimant partial disability benefits “pursuant to Code § 65.2-510(B).” Id. We affirmed the commission’s judgment, noting as follows:

If claimant had refused the offer of full-time employment, resigned and thereafter immediately accepted part-time, light duty work with employer or elsewhere, at reduced wages, she would have partially cured such refusal Likewise, continued part-time, selective employment with [the employer], following the full-time offer, constituted a partial cure of her prior unjustified refusal of such employment within the intendment of Code § 65.2-510(B). A contrary result would deny benefits under circumstances evincing little substantive difference in conduct, thereby thwarting the purposes of the Workers’ Compensation Act____ Accordingly, the commission correctly determined that “claimant would still be entitled to temporary benefits based on *678the difference between her pre[-]injury average weekly wage and the wage she would have earned had she accepted [the] full-time hours.”

Id. at 39-40, 542 S.E.2d at 789 (emphasis added).

In this case, claimant did just what we spoke of in Hillerest Manor Nursing Home—he refused employer’s offer of continued full-time selective employment, resigned in order to take voluntary retirement, and thereafter timely accepted selective employment with a different employer at reduced wages. Accordingly, we hold that Hillerest Manor Nursing Home is applicable to this ease and requires the conclusion that claimant partially cured his refusal of selective employment under Code § 65.2-510(B).

Moreover, we are aware of no controlling precedent since Code § 65.2-510(B)’s enactment in 1995 that supports the commission’s conclusion that claimant did not partially cure his unjustified refusal of selective employment under Code § 65.2-510(B) because the position he procured was not “at a wage comparable to that of the previously refused position.” As noted above, Newsome was decided under the full cure provisions of Code §§ 65.2-510 and 65.2-502. See 30 Va.App. at 26, 515 S.E.2d at 320 (“[B]ecause Newsome properly cured his refusal of selective employment, as long as he fully markets his residual capacity, we find no authority to limit the employer’s liability to the difference between Newsome’s refused selective employment wage and his pre-injury wage.”). In Clements, we cited Code § 65.2-510(B) and Hillerest Manor Nursing Home for the proposition that a claimant may “partially cure a refusal” but expressly stated in a footnote that the claimant in that case “never argued that she partially cured her refusal.” 40 Va.App. at 225 & n. 7, 578 S.E.2d at 819 & n. 7. Similarly, we expressly noted in Metropolitan Washington Airports Authority v. Lusby, 41 Va.App. 300, 315 n. 8, 585 S.E.2d 318, 325 n. 8 (2003), that, although Code § 65.2-510 “was amended in 1995 to allow for a ‘partial’ cure[, it was] clear from the full commission’s opinion that it proceeded under the former statute, which was in effect at the time of [the claimant’s] injury, because it [did] not contemplate *679or consider partial cure as a basis for recovery in [the] case.” Thus, none of these cases was decided under the partial cure provisions of Code § 65.2-510(B).4

We hold, therefore, pursuant to Hillcrest Manor Nursing Home and the express language of Code § 65.2-510(B), that claimant’s acceptance on March 10, 2003, of selective employment paying $200 per week was sufficient under Code § 65.2-510(B) to partially cure his unjustified refusal of selective employment paying $1,002 per week. Consequently, having timely partially cured his unjustified refusal of selective employment, claimant was entitled to a continuation of his temporary partial disability wage-loss benefits in accordance with Code § 65.2-510(B).

III. CONCLUSION

For these reasons, we reverse the commission’s decision and remand this case for further proceedings consistent with this opinion.

Reversed and remanded.

. As the fall commission noted, neither party challenged this determination.

. Code § 65.2-510(B) provides as follows:

If an injured employee cures his unjustified refusal by accepting employment suitable to his capacity at a wage less than that originally offered, the employer shall pay or cause to be paid to the injured employee during his partial incapacity pursuant to § 65.2-502, a weekly compensation equal to 66 2/3 percent of the difference between his average weekly wages before his injury and the average weekly wage the employee would have earned by accepting the original proffered light duty employment.

. Indeed, an employer that offers an injured employee selective employment at a wage equal to or greater than the employee’s pre-injury wage would have no liability under the partial cure provisions of Code § 65.2-510(B).

. Relying on National Linen Service v. McGuinn, 8 Va.App. 267, 380 S.E.2d 31 (1989), a case that predates the enactment of Code § 65.2-510(B), the dissent reads Code § 65.2-510(B)’s "employment suitable to his capacity" language as permitting a partial cure only where an injured employee either (1) procures selective employment that requires him "to perform tasks comparable to those he performed during his selective employment” with the employer or (2) demonstrates he has made reasonable efforts to procure such selective employment or to market his full residual work capacity. However, as the dissent specifically notes, the phrase "employment suitable to his capacity” means nothing more than "employment within the employee’s residual [work] capacity resulting from the industrial accident.” American Furniture Co. v. Doane, 230 Va. 39, 42, 334 S.E.2d 548, 550 (1985). In other words, the phrase simply refers to employment that does not exceed the partially disabled employee’s work restrictions and limitations caused by the compensable injury, and is often used interchangeably with such terms as "selective employment,” see, e.g., id. at 42-43, 334 S.E.2d at 550, and "suitable light-duty [employment],” see, e.g., M & S Auto Parts, Inc. v. Presgraves, 45 Va.App. 455, 464, 611 S.E.2d 655, 659 (2005) (emphasis omitted). We may not extend the import of the phrase beyond its obvious meaning. See Britt Construction, 271 Va. at 62-63, 623 S.E.2d at 888; Peacock, 38 Va.App. at 248-49, 563 S.E.2d at 372.