S.W. Rodgers Co., Inc. and Valiant Ins. v. Settle

• Court: Court of Appeals of Virginia
• Decided: March 10, 1998
• Docket: 1467974
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Annunziata and Bumgardner Argued at Alexandria, Virginia

S. W. RODGERS COMPANY, INC. and VALIANT INSURANCE COMPANY MEMORANDUM OPINION * BY v. Record No. 1467-97-4 JUDGE JERE M. H. WILLIS, JR. MARCH 10, 1998 LARRY G. SETTLE

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION William S. Sands, Jr. (Duncan and Hopkins, P.C., on brief), for appellants.

Peter J. Jones for appellee.

S. W. Rodgers Company, Inc. and its insurance carrier

(Rodgers) appeal from a decision of the Virginia Workers'

Compensation Commission awarding temporary total disability

benefits to Larry G. Settle. Rodgers contends that the

commission erred in holding that a period of total disability

after an injured employee's refusal of selective employment

terminates the operation of the benefits limitation clause in

Code § 65.2-510(B). However, the commission's decision was not

based upon such a holding, but rather upon its determination that

the facts in this case do not invoke the operation of Code

§ 65.2-510. We affirm the commission's award.

Rodgers employed Settle as a diesel mechanic. On June 20,

1994, Settle injured his right shoulder in an industrial

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. accident. Rodgers accepted the claim and paid Settle temporary

total disability benefits from February 13, 1995 to March 19,

1995. On March 20, 1995, Rodgers provided Settle a suitable

light duty position. Settle received temporary partial

disability benefits from March 20, 1995 to April 23, 1995. On

April 24, 1995, although still working light duty, Settle began

earning his pre-injury average weekly wage and his compensation

ceased. See Code § 65.2-502. On May 20, 1995, Rodgers terminated Settle for misconduct.

On June 28, 1996, the full commission held that the May 20

termination was for "unjustified cause," equivalent to Settle's

refusal of selective employment, but held that Settle had cured

this refusal by finding new employment. Because the average

weekly wage that Settle would have received had he maintained

selective employment with Rodgers equaled his pre-injury average

weekly wage, the commission denied Settle compensation benefits

for partial incapacity. See Code § 65.2-510(B). This decision

was not appealed and became final.

On November 20, 1995, Settle underwent further medical

treatment and the parties stipulated an award reinstating

temporary total disability benefits.

On March 7, 1996, Rodgers filed an application seeking

termination of Settle's total disability benefits. The

application alleged that on January 17, 1996, Settle had been

released to light duty work. It further alleged that Settle's

- 2 - prior refusal of Rodgers' light duty offer barred him from

receiving temporary partial disability benefits, pursuant to Code

§ 65.2-510(B).

The deputy commissioner denied the petition and "reinstated"

Settle's temporary total disability benefits, holding that a

period of good faith temporary total disability from which there

is no new unjustified refusal of offered employment supersedes a

previous benefit limitation imposed pursuant to Code

§ 65.2-510(B). On review, the full commission affirmed the

award. However, the full commission based this ruling upon its

determination that Rodgers had failed to prove a change in

Settle's condition and that, thus, Code § 65.2-510 was

inapplicable. The record supports this determination. A change in a claimant's physical condition or capacity to

work may justify modification of an existing award. Code

§ 65.2-708; Central Virginia Training Ctr. v. Martin, 2 Va. App.

188, 192, 342 S.E.2d 652, 654 (1986). However, "[i]n an

application for review of an award on the ground of a change in

condition, the burden is on the party alleging such change to

prove his allegation by a preponderance of the evidence." Pilot

Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 438-39, 339

S.E.2d 570, 572 (1986) (citation omitted).

Rodgers contends that Settle's outstanding award for

temporary total disability benefits should be terminated and that

an award of temporary partial disability, providing no benefits

- 3 - pursuant to Code § 65.2-510(B), should be entered. However, to

prove the change in condition required for modification of the

outstanding award, Rodgers was required to prove that Settle "was

either able to return to his regular employment or that he had

been offered or provided selective employment within his work

capacity." National Linen Service v. McGuinn, 5 Va. App. 265,

270, 362 S.E.2d 187, 190 (1987) (en banc). The record supports

the commission's finding that Rodgers failed to carry this burden

of proof. The award of the commission is affirmed.

Affirmed.

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