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. 
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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 
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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.