COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Willis 

Argued at Salem, Virginia 

CONSOLIDATED STORES CORPORATION and 

 LUMBERMENS MUTUAL CASUALTY COMPANY 

 OPINION BY 

v. Record No. 2897-96-3 JUDGE JERE M. H. WILLIS, JR. 

 JUNE 24, 1997 

SANDRA C. GRAHAM 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 

 Monica L. Taylor (Thomas H. Miller; Gentry, 

Locke, Rakes & Moore, on brief), for 

appellants. 

 Carr L. Kinder, Jr. (Kinder & Fogel, P.C., on 

brief), for appellee. 

 Consolidated Stores Corporation and Lumbermens Mutual 

Casualty Company (Consolidated) appeal the decision of the 

Workers' Compensation Commission reinstating an award of 

compensation benefits to Sandra C. Graham. Consolidated contends 

that the commission erred in finding that Ms. Graham's wage loss 

was attributable to her work injury, rather than to economic 

conditions at the workplace. We affirm the award of the 

commission. 

 On appeal, we view the evidence in the light most favorable 

to the party prevailing below. Crisp v. Brown's Tysons Corner 

Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986). 

The findings of the commission are conclusive and binding if 

supported by credible evidence. Morris v. Badger Powhatan/Figgie 

Int'l Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986). 
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 Ms. Graham injured her arm in a job-related accident. At 

the time of her injury, she was a part-time stocker, working four 

hours per day, six days per week. Her average weekly wage was 

$108. She received temporary total disability benefits from 

January 20, 1994 through January 9, 1996. 

 On October 16, 1995, Dr. Brian Torre, Ms. Graham's treating 

physician, authorized her to perform light duty work. 

Subsequently, Dr. Torre approved Ms. Graham for a light duty 

position as a part-time sales clerk. On December 27, 1995, 

Consolidated offered Ms. Graham a part-time sales clerk position 

at her previous hourly wage. Ms. Graham accepted the job and 

began work on January 10, 1996. Due to economic conditions, 

Consolidated assigned Ms. Graham a reduced number of hours, 

resulting in an average weekly wage of less than $108. 

 Citing her return to light duty work at her pre-injury 

hourly wage, Consolidated filed an application with the 

commission seeking a suspension of Ms. Graham's benefits. The 

deputy commissioner terminated Ms. Graham's award. He found that 

Consolidated had proven that Ms. Graham "was released to her 

pre-injury employment and that any diminution in hours worked was 

a product of the down turn in business rather than an inability 

to perform the work activities." 

 On review, the full commission reversed the deputy 

commissioner's decision. The commission found that Ms. Graham 

had not been released to her pre-injury job and that she was not 
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performing all of her pre-injury duties. Accordingly, it held 

that "[t]he fact that the availability of light duty work is 

limited due to economic conditions does not diminish the 

claimant's right to compensation when the injury prevents her 

from performing her regular job." The commission awarded Ms. 

Graham temporary partial disability compensation benefits of 

$53.07 per week. 

 Consolidated contends that the decline in Ms. Graham's 

average weekly wage upon her return to work resulted from poor 

economic conditions, not from her work injury. Consolidated 

argues that although Ms. Graham was not re-employed as a stocker, 

she received an equivalent position providing her with the same 

part-time status and hourly wage that she had enjoyed prior to 

her injury. We find that credible evidence supports the 

commission's decision. 

 "The threshold test for compensability is whether the 

employee is 'able fully to perform the duties of his preinjury 

employment.'" Celanese Fibers v. Johnson, 229 Va. 117, 120, 326 

S.E.2d 687, 690 (1985) (quoting Sky Chefs, Inc. v. Rogers, 222 

Va. 800, 805, 284 S.E.2d 605, 607 (1981)). Prior to her injury, 

Ms. Graham was a stocker. In January, 1996, Consolidated rehired 

her as a cashier/store clerk. Despite voluminous medical 

evidence detailing a general lack of objective support for her 

subjective complaints, none of her medical doctors released her 

to work as a stocker. Her assigned duties as a "store clerk" are 
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not commensurate with those of a stocker.1

 During a period of partial incapacity, a claimant performing 

work remains entitled to compensation benefits, determined in 

part by calculating the difference between the claimant's average 

weekly wage before and after the injury. Code § 65.2-502. Thus, 

by providing suitable alternative employment to a claimant, an 

employer may avoid paying compensation benefits. However, the 

employer's financial condition and the availability of 

alternative work do not affect the claimant's right to 

compensation due to an impaired capacity to perform his 

pre-injury duties. 

 Ms. Graham was not released to return to her duties as a 

stocker. She was not restored to her pre-injury capacity. 

Therefore, Consolidated remains liable to Ms. Graham, because its 

duty to compensate her has not been eliminated by the provision 

of alternative light duty work. 

 The decision of the commission is affirmed. 

 Affirmed.

 

 1The responsibilities of a sales clerk position include: 

consumer assistance, operation of a cash register, merchandise 

recovery, and the ticketing and stocking of merchandise. The job 

description requires the "[a]bility to lift a minimum of 10 

pounds and perform physical activity at a sustained pace . . . ." 

 However, Dr. Torre's approval of the position specifically 

exempted Ms. Graham from unloading delivery trucks.