National Linen Service v. McGuinn

362 S.E.2d 187, 5 Va. App. 265, 4 Va. Law Rep. 1075, 1987 Va. App. LEXIS 239

• Court: Court of Appeals of Virginia
• Decided: November 17, 1987
• Docket: Record No. 1305-85
• Status: Published

Opinions

Moon, J., with whom Cole, J. and Keenan, J. join,

dissenting.

We dissent because we believe that Washington Metropolitan Area Transit Authority v. Harrison, 228 Va. 598, 324 S.E.2d 654 (1985) controls the facts of this case.

Thomas McGuinn injured his ankle on August 5, 1983, while he was employed by National as a laundry truck driver. He underwent surgery for reconstruction of the lateral ankle ligaments and was released by his doctor for light duty work on August 6, 1984, with the only limitation being against going up and down stairs and lifting heavy objects. National voluntarily paid McGuinn temporary total disability benefits from November 22, 1983, through December 17, 1984. No memorandum of agreement was executed by the parties. On December 19, 1984, McGuinn returned to light duty work for National for the first time. The job did not require any heavy lifting or walking up and down stairs, but McGuinn advised his employer that he was incapable of performing the work. McGuinn’s doctor recommended that he attempt to work no more than four hours a day but National had no such part-time position available. National ceased paying the benefits and McGuinn filed an application on January 23, 1985, for a hearing before the Industrial Commission, alleging continued entitlement to temporary total benefits beginning August 5, 1983.

A partially disabled employee is entitled to be compensated at no more than two-thirds of the difference between his average weekly wage before the injury and what he is capable of earning thereafter. Code § 65.1-55. An employee who refuses selective employment within his work capacity forfeits his right to compensation. Code § 65.1-63. The Supreme Court has construed Code § 65.1-63, in conjunction with Code § 65.1-55, as encouraging the partially disabled employee to find selective employment even though there is no statutory duty to do so. Big D Quality Homebuilders v. Hamilton, 228 Va. 378, 382, 322 S.E.2d 839, 841 (1984). Thus, a partially incapacitated employee, absent an award from the Industrial Commission, is not entitled to temporary total disability benefits unless he has established that he has made a reasonable effort to market his remaining capacity for work. Harrison, 228 Va. at 600-01, 324 S.E.2d at 655-56.

In Harrison, the insurer had voluntarily paid benefits to the claimant and had submitted a signed memorandum of agreement to the Industrial Commission, but no award had been entered by the commission approving the voluntary agreement. The Supreme Court noted that “while the question of compensability of the injury had been mooted by the agreement, Harrisons procedural posture as to his entitlement was otherwise no different than that of the claimants in Agee and Barbour,” two earlier cases in which the claimants had no memorandum of agreement. The Supreme Court held that each claimant bore “the burden of proving that he had made a reasonable effort to procure suitable work but was unable to market his remaining work capacity.” Id. at 601, 324 S.E.2d at 656; see also Pocahontas Fuel Co. v. Agee, 201 Va. 678, 681, 112 S.E.2d 835, 839 (1960); Pocahontas Fuel Co. v. Barbour, 201 Va. 682, 684, 112 S.E.2d 904, 906 (1960). Prior to the holding in Harrison, the Industrial Commission would award temporary total disability benefits to a partially disabled employee unless the employer offered or found suitable light work. See, e.g., Oakes v. Commercial Contracting Corp., 56 O.I.C. 237, 238 (1975). Harrison reversed this frequent Industrial Commission ruling and reaffirmed the holdings in Agee and Barbour.

In awarding McGuinn disability benefits, the commission stated:

If an agreement had been executed on this case, the claimant would have been placed under an Award, and the burden of proof would have shifted to the carrier to establish a change in condition which would have required evidence that the employee is either able to return to his regular employment or had been offered or provided selective employment within his capacity.

However, the commission stated that, because National paid benefits to McGuinn for thirteen months without entering into a memorandum of agreement, it would be held to the same standard: requiring the employer to show that it offered or provided selective employment to the employee that was within his capacity to perform.⁴

We believe that the Industrial Commission failed to follow Harrison. In Harrison there was an agreement but no award. There the Supreme Court stated that because Harrison had not proved the nature and extent of his disability in the Industrial Commission, he still had the burden of proving that he had marketed his remaining work capacity. Like Harrison, McGuinn had no award and it was proved that he was only partially disabled.⁵ 6Therefore, like Harrison, McGuinn had the burden of proving that he had made a reasonable effort to market his remaining work capacity. Harrison, 228 Va. at 601, 324 S.E.2d at 656.

Whether McGuinn has made a reasonable effort to market his remaining work capacity, as defined in Harrison, is a factual issue to be determined by the commission and is binding on appeal if supported by credible evidence. See Webb v. Eastern Airlines, 1 Va. App. 421, 422, 339 S.E.2d 563, 564 (1986); Code § 65.1-98. The evidence supports the commission’s factual finding that McGuinn was only partially disabled and had not made reasonable efforts to market his remaining work capacity.

Therefore, because Harrison requires an employee in McGuinn’s situation to prove that he has made reasonable efforts to market his remaining work capacity, which he has failed to demonstrate, the decision of the Industrial Commission should be reversed.

4 Voluntary payments of compensation or disability benefits by an employer do not waive the right of the employer to assert any defenses it may have absent fraud or concealment on the part of the employer or the insurer. See Stuart Circle Hospital v. Alderson, 223 Va. 205, 208, 288 S.E.2d 445, 446-47 (1982); Clark v. United Airlines, 223 Va. 197, 200, 288 S.E.2d 441, 442 (1982). There is no evidence of any fraud, concealment, or misrepresentation on the part of National or its insurer. Therefore, there is no basis for finding an estoppel on the part of National to justify the ruling that National has the burden of proof because it did not enter into a memorandum of agreement.

5 This finding of fact regarding partial disability was made by the deputy commissioner, not reversed by the Industrial Commission, and was not appealed to this Court.