Virginia Power v. Tim B. Brueser

• Court: Court of Appeals of Virginia
• Decided: December 16, 1997
• Docket: 1667974
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Baker and Elder

VIRGINIA POWER MEMORANDUM OPINION * v. Record No. 1667-97-4 PER CURIAM DECEMBER 16, 1997 TIM B. BRUESER

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Glenn S. Phelps; Midkiff & Hiner, on brief), for appellant. (Craig A. Brown; Ashcraft & Gerel, on brief), for appellee.

Virginia Power (employer) contends that the Workers'

Compensation Commission erred in awarding temporary partial

disability benefits to Tim B. Brueser (claimant) based upon pay

for overtime hours that claimant was not offered when he returned

to light duty work with 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.

Two recent decisions control the issue of whether the

partially disabled claimant is entitled to benefits because his

light duty job has not included overtime wages as did his

pre-injury work. In Carr v. Virginia Electric & Power Co., 25

Va. App. 306, 487 S.E.2d 878 (1997), and Consolidated Stores Corp. v. Graham, 25 Va. App. 133, 486 S.E.2d 576 (1997), we held * Pursuant to Code § 17-116.010 this opinion is not designated for publication. that when a claimant who has not been released to his pre-injury

duties is offered and accepts light duty work from 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 claimant's right to compensation due to an

impaired capacity to perform his pre-injury duties."

Consolidated Stores, 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 a claimant who has not recovered his "pre-injury

capacity" suffers a wage loss in the light duty position by

virtue of the fact that 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 light duty position, he is entitled to

temporary partial disability benefits to compensate for the wage

loss incurred. See Carr, 25 Va. App. at 312, 487 S.E.2d at 881; Consolidated Stores, 25 Va. App. at 136-37, 486 S.E.2d at 578.

The uncontradicted evidence in this case proves that the

claimant has not been released to his pre-injury capacity as an

electric serviceman - first class. The evidence also proves that

claimant consistently accepted overtime hours that were offered

to him in his pre-injury employment. However, in his light duty

employment, he was not offered overtime hours, whereas other

employees in claimant's pre-injury job classification continued

- 2 - to receive overtime. Claimant's average weekly wage earned prior

to his injury was greater than the average weekly wage earned in

the light duty work because of the lack of available overtime in

the light duty work. Thus, he suffered a post-injury wage loss.

"[E]mployer's inability to predict the available overtime to the

[electric servicemen] during the period in question does not

diminish claimant's right to compensation, as his work-related

injury prevents him from performing [electric serviceman] duties,

and employer remains liable for the wage loss suffered by

claimant." 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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