Newport News Shipbuilding and Dry Dock v. Fawcett

• Court: Court of Appeals of Virginia
• Decided: May 18, 1999
• Docket: 2410981
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis

NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY MEMORANDUM OPINION * v. Record No. 2410-98-1 PER CURIAM

CURTIS L. FAWCETT

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

(Benjamin M. Mason; Mason & Mason, P.C., on brief), for appellant.

(Gregory E. Camden; Montagna, Klein & Camden, L.L.P., on brief), for appellee.

Newport News Shipbuilding and Dry Dock Company contends that

the Workers’ Compensation Commission erred in finding that

Curtis L. Fawcett proved that he was entitled to temporary partial

disability benefits for the period September 3, 1996 through July

12, 1997, for a loss of overtime he incurred after he returned to

selective employment offered to him by employer. Upon reviewing

the record and the briefs of the parties, we conclude that this

appeal is without merit. Accordingly, we summarily affirm the

commission’s decision. See Rule 5A:27.

This Court’s recent decisions in Carr v. Virginia Electric &

Power Co., 25 Va. App. 306, 487 S.E.2d 878 (1997), and

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Consolidated Stores Corp. v. Graham, 25 Va. App. 133, 486 S.E.2d

576 (1997), control the issue whether the partially disabled

employee is entitled to benefits because his selective employment

has not included overtime wages as did his pre-injury work. When

an employee who has not been released to his pre-injury duties has

selective employment with the employer which does not include

overtime that was previously part of the pre-injury job, "the

availability of alternative [overtime] work [does] not affect the

[employee's] right to compensation due to an impaired capacity to

perform his pre-injury duties." Graham, 25 Va. App. at 137, 486

S.E.2d at 578. The underlying theory is that the partial

incapacity has caused the employee to earn a lesser post-injury

wage than his pre-injury wage. Thus, if an employee who has not

recovered his "pre-injury capacity" suffers a wage loss in the

selective employment because overtime work, which was previously

available, enabled the employee to earn a particular wage and the

employee is not able to earn that same wage because overtime is

unavailable in the selective employment, the employee is entitled

to temporary partial disability benefits to compensate for the

wage loss. See id. at 136-37, 486 S.E.2d at 578; Carr, 25 Va.

App. at 312, 487 S.E.2d at 881.

The uncontradicted evidence in this case proved that Fawcett

had not been released to perform the full-duties of his pre-injury

job. After Fawcett returned to selective employment offered by

- 2 - employer, he was no longer afforded overtime hours. Fawcett’s

average weekly wage earned prior to his injury was greater than

the average weekly wage he earned in his selective employment

because of the lack of available overtime in that selective

employment. Thus, he suffered a post-injury wage loss. The fact

that employer assigned Fawcett to selective employment where

overtime work was not generally needed or the fact that less

overtime was generally available due to general economic

conditions did "not diminish [Fawcett’s] right to compensation, as

his work-related injury prevent[ed] him from performing [his

pre-injury duties], and employer remain[ed] liable for the wage

loss suffered by [him]." Carr, 25 Va. App. at 312, 487 S.E.2d at

881.

For these reasons, we affirm the commission’s decision.

Affirmed.

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