COURT OF APPEAL S OF VIRGINIA

Present: Judg es Benton, Cole man 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; Ma son & Mason, P.C., on brief), for appellant. (Gregory E. Ca mden; Montagna, Klein & Camden, L.L.P., on brief), for appellee.

Newport News Shipbuilding and Dry Dock Company contends that the Workers’ Compensation Comm ission erred in finding that Curtis L. Fawcett proved that he was entitl ed to tempor ary partial disability benefits fo r the period September 3, 1996 through July 12, 1997, for a loss of overtime he incurred after he returned to selective empl oyment offered to him by employer. Up on reviewing the record and the brie fs of the part ies, we conclu de that this appeal is withou t merit. Accord ingly, we summar ily affirm the commission’s decision. See Rule 5A:27. This Court’s rece nt 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.- 2 - Consolidated Stores Corp. v. Graham , 25 Va. App. 13 3, 486 S.E.2d 576 (1997), cont rol the issue wh ether the partia lly disabled employee is enti tled to benefits because his selective employment has not included overti me wages as did his pr e-injury work. When an employee who has not been released to his pre-injury duties has selective empl oyment with the employer which do es not include overtime that wa s previously part of the pre-inju ry job, "the availability of alternative [o vertime] work [doe s] not affect the [employee's] right to co mpensation due to an impaired capacity to perform his pre-in jury 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 pr e-injury wage. Thus, if an empl oyee who has not recovered his "pre -injury capacity " suffers a wage loss in the selective empl oyment because ov ertime work, whic h was previously available, enabled the employee to earn a pa rticular wa ge and the employee is not ab le to earn that same wa ge because ov ertime is unavailable in the sele ctive employment , the employee is entitled to temporary part ial 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 uncontradict ed evidence in this ca se proved that Fawcett had not been released to perform the full-duties of his pre-injury job. After Fawc ett returned to selective em ployment offered by- 3 - employer, he was no longer afforded overtime hours. Fawcett’s average weekly wa ge earned prior to his injury was greater than the average weekly wage he earned in hi s selective employment because of the lack of available ov ertime in that selective employment. Thus, he suffered a post-injury wage loss. The fact that employer assign ed Fawcett to select ive employment where overtime work wa s not generally ne eded or the fa ct that less overtime was genera lly available due to general economic conditions did "not di minish [Fawcett’s] righ t to compensation, as his work-relat ed injury preven t[ed] him from pe rforming [his pre-injury duties], and employer remain[ed] liable for the wage loss suffered by [him]." Carr , 25 Va. App. at 31 2, 487 S.E.2d at 881. For these reas ons, we affirm the co mmission’s decision. Affirmed.