Dowden v. Hercules, Inc.

*680FELTON, C.J., dissenting.

I respectfully dissent for the following reasons.

The record reflects claimant was employed as a plant mechanic prior to his unjustified refusal of selective employment. He sustained a compensable injury on January 31, 2001, five months after he submitted an application for early retirement. He returned to work the day following his injury and continued to perform light-duty tasks until he retired May 1, 2001. During that time, claimant received temporary partial disability wage-loss benefits at a rate of $161.10 per week. After claimant’s voluntary retirement, employer continued to pay claimant temporary partial disability wage-loss benefits through July 13, 2003.5 On or around that date, employer discovered that claimant had accepted employment as a sales associate with a friend’s seafood company on March 10, 2003, some twenty months after his voluntary retirement,6 earning $200 per week. Claimant testified that he failed to notify employer of his new employment because he “didn’t see where it was anybody’s business.”

As the majority notes, claimant does not dispute on appeal that his voluntary retirement constituted an unjustified refusal of selective employment. It is well-settled that “[i]f an injured employee unjustifiably refused selective employment offered by the employer, he or she is ‘no longer entitled to receive [wage-loss benefits] during the continuance of the refusal.’” ARA Services v. Swift, 22 Va.App. 202, 206, 468 S.E.2d 682, 684 (1996) (citing Virginia Wayside Furniture, Inc. v. Burnette, 17 Va.App. 74, 78, 435 S.E.2d 156, 159 (1993); Code § 65.2-510(A)). However, the injured employee is entitled to a reinstatement of such benefits if he cures his unjustified refusal of selective employment, Food Lion, Inc. v. Newsome, *68130 Va.App. 21, 25, 515 S.E.2d 317, 319 (1999), “within six months from the last day for which compensation was paid,” Code § 65.2-510(C). Adopting claimant’s argument that Code § 65.2-510(B)7 permits an injured employee to partially cure an unjustified refusal of selective employment by obtaining “any” alternate employment, the majority concludes “that claimant’s acceptance ... 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.” In my view, the majority disregards Code § 65.2-510(B)’s “suitable to his capacity” language, which I believe requires the opposite conclusion.

Claimant’s argument on appeal raises a question of statutory construction. Although 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 [] employment[,]” Henderson v. Central Tel. Co., 233 Va. 377, 382, 355 S.E.2d 596, 599 (1987), “[t]hat liberality, however, has its limits.” Clinchfield Coal Co. v. Reed, 40 Va.App. 69, 73, 577 S.E.2d 538, 540 (2003). “We are required to construe the law as it is written.” Peacock v. Browning Ferris, Inc., 38 Va.App. 241, 248, 563 S.E.2d 368, 372 (2002) (citation omitted). “ mere the legislature has used words of a plain and definite import the courts cannot put upon them a construction which amounts to holding the legislature did not mean what it has actually expressed.’ ” Barr v. Town & Country Props., Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990) (quoting Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934)). Thus, “[w]e are *682not authorized to amend, alter or extend the ... Act’s provisions beyond their obvious meaning.” Peacock, 38 Va.App. at 248-49, 563 S.E.2d at 372.

The majority concludes that our decision in Hillcrest Manor Nursing Home v. Underwood, 35 Va.App. 31, 542 S.E.2d 785 (2001), is applicable to claimant’s case because “claimant did just what we spoke of in Hillcrest 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.” I respectfully disagree. While we recognized in Hillcrest Manor Nursing Home that Code § 65.2-510(B) permits an injured employee to “partially cure” an unjustified refusal of selective employment by obtaining alternate employment at a reduced wage, we did not address the statutory provision’s requirement that an employee’s alternate employment must be “suitable to his capacity.” In my view, Code § 65.2-510(B)’s “suitable to his capacity” language was not at issue in Hillcrest Manor Nursing Home because the same tasks the employee performed in the part-time position were identical to those to be performed in the offered full-time selective employment, only at a reduced wage. 35 Va.App. at 38, 542 S.E.2d at 788. Therefore, her alternate employment was clearly suitable to her residual capacity for work.

Claimant’s alternate employment selling seafood at a substantially reduced wage did not require him to perform tasks comparable to those he performed during his selective employment as a plant mechanic. Consequently, Code § 65.2-510(B)’s “suitable to his capacity” language, in my view, must be considered in determining whether claimant’s employment selling seafood partially cured his unjustified refusal of selective employment. See Barr, 240 Va. at 295, 396 S.E.2d at 674 (“We must ... assume that the legislature chose, with care, the words it used when it enacted the ... statute, and we are bound by those words as we interpret the statute.”).

*683In interpreting Code § 65.1-63,8 an earlier version of Code § 65.2-510 containing substantially similar language, the Supreme Court defined employment “suitable to his capacity” as “employment within the employee’s residual capacity resulting from the industrial accident.” American Furniture Co. v. Doane, 230 Va. 39, 42, 334 S.E.2d 548, 550 (1985). Consistent with that definition, we held in National Linen Service v. McGuinn, 8 Va.App. 267, 380 S.E.2d 31 (1989), that “Code § 65.1-63 ... clearly require[d] a disabled employee to make a ‘reasonable effort’ to market his remaining work capacity in order to receive continued workers’ compensation benefits.” Id. at 269, 380 S.E.2d at 33. Under former Code § 65.1-63, “the mere fact that the [injured] employee obtained a new job, where the pay is substantially less than that received at the old job, [was], standing alone, insufficient proof of making a reasonable effort to market’s one’s remaining work capacity.” Id. at 268, 380 S.E.2d at 32.

“The General Assembly subsequently reenacted Code § 65.1-63 as Code § 65.2-510 and amended it to recognize the ability of an injured employee to [partially] cure a refusal of selective employment procured for him and to provide a time limit on the period in which an employee may do so.” M & S Auto Parts, Inc. v. Presgraves, 45 Va.App. 455, 463, 611 S.E.2d 655, 659 (2005) (citing 1991 Va. Acts, ch. 355; 1995 Va. Acts, ch. 319; 1996 Va. Acts, ch. 252). “However, the General Assembly did not alter the basic purpose of the statute or the interpretation given it by our appellate courts.” Id. In my view, the Supreme Court’s definition of “suitable to his capacity” in Doane continues to be embodied in Code § 65.2-510’s “suitable to his capacity” language.9 I am also of the view *684that the reenactment of Code § 65.1-63 as Code § 65.2-510, and the subsequent amendment of Code § 65.2-510 to include subsection (B) did not disturb our holding in McGuinn that temporary wage-loss benefits may be continued only where an injured employee secures suitable employment within his physical limitations or continues to market his residual work capacity. See Burke v. Commonwealth, 29 Va.App. 183, 188, 510 S.E.2d 743, 745-46 (1999) (“When new provisions are added to existing legislation by amendment, we presume that the legislature ‘acted with full knowledge of and in reference to the existing law upon the same subject and the construction placed upon it by the courts.’ ” (quoting City of Richmond v. Sutherland, 114 Va. 688, 693, 77 S.E. 470, 472 (1913))).

In my view, a partial cure may be accomplished under Code § 65.2-510(B) by the injured employee either obtaining alternate employment that, although paying a reduced wage, is “suitable” to an injured employee’s residual capacity for work, or, by accepting any alternate employment, regardless of its “suitability,” and demonstrating a reasonable effort to market his full residual capacity for work.

Here, claimant worked for employer as a plant mechanic earning $1,243.64 per week. After sustaining a compensable back injury on January 31, 2001, he returned to light-duty work performing the same tasks, but with restrictions on lifting. Claimant remained on light duty with employer, earning $1,002 per week, until May 1, 2001, the date his voluntary retirement became effective. By continuing to work for employer for three months after sustaining his compensable injury, claimant established that the selective light-duty position was within his residual capacity for work. I find no credible evidence in the record that claimant’s position selling seafood for $200 per week is “suitable to his capacity” for work as required by Code § 65.2-510(B). Moreover, the record before us contains no evidence of claimant’s efforts to obtain alternate employment suitable to his residual work capacity or to market his residual work capacity for some twenty months following his voluntary retirement. It was only by chance that employer discovered that claimant had *685obtained employment at his friend’s business at a wage of $200 per week. It is difficult, in my view, on the record before us, to conclude that claimant cured, even partially, his refusal of selective employment—particularly in light of his failure to report his new employment to employer, and when asked why he had not reported it, he replied that, “I didn’t see where it was anybody’s business.”

Accordingly, I would hold on this record that claimant failed to cure his unjustified refusal of selective employment under Code § 65.2-510(B), and would affirm the decision of the commission.

. Employer did not file an application for hearing to terminate claimant's wage-loss benefits under Code § 65.2-510(A) during the period of time from claimant's voluntary retirement until it learned of his new employment.

. The record is silent concerning claimant's effort, if any, to market his residual capacity during that period of time.

. Code § 65.2-510(B) provides:

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 Code § 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.

(Emphasis added).

. Former Code § 65.1-63, the predecessor to Code § 65.2-510, provided that, "[i]f an injured employee refuses employment procured for him suitable to his capacity, he shall not be entitled to any compensation at any time during the continuance of such refusal, unless in the opinion of the Industrial Commission such refusal was justified.” (Emphasis added).

. The "suitable to his capacity” language appearing in former Code § 65.1-63 currently appears in both subsection (A) and subsection (B) of Code § 65.2-510.