COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Annunziata and Agee 

Argued at Alexandria, Virginia 

POWER AND ALARM COMMUNICATIONS SYSTEM and 

 MONTGOMERY MUTUAL INSURANCE COMPANY 

 MEMORANDUM OPINION* BY 

v. Record No. 2783-00-4 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 JUNE 19, 2001 

MICHAEL D. BYERLY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 James Richard Ryan, Jr. (Pamela A. Kultgen; 

Siciliano, Ellis, Dyer & Boccarosse, on 

briefs), for appellants. 

 William A. Musto (Koonz, McKenney, Johnson, 

DePaolis & Lightfoot, on brief), for 

appellee. 

 Power and Alarm Communications System and its insurer 

("employer") contend that the Workers' Compensation Commission 

("commission") erred in awarding temporary partial disability 

benefits to Michael D. Byerly ("claimant").1 Finding no error, 

we affirm. 

I. 

 At the time of the accident, claimant had been employed as 

an electrician service truck driver for approximately two years. 

 

* Pursuant to Code § 17.1-413 this opinion is not 

designated for publication.

1

 Employer states in its question presented that claimant's 

temporary total disability claim was at issue. However, the 

commission found that the employer did not appeal this 

determination of the deputy commissioner. 
At hearing, the parties stipulated that claimant: (1) had a 

pre-injury average weekly wage of $1381.78; (2) sustained a 

compensable workers' compensation injury on or about March 30, 

1999; (3) injured his neck, lower back and right shoulder in the 

accident; and (4) had an initial period of total disability from 

March 31 through July 6, 1999. 

 Claimant filed a claim for temporary total benefits for the 

period March 30 through July 20, 1999 and temporary partial 

benefits for the period July 21, 1999 to the present and 

continuing. Employer defended the claim on the ground that 

claimant was able to return to full-duty work on August 5, 1999 

based on a medical evaluation by Dr. David Dorin or, in the 

alternative, claimant failed to market his residual capacity 

and, therefore, was not entitled to temporary partial benefits. 

The deputy commissioner found claimant totally disabled from 

March 30 through July 20, 1999 and awarded benefits. He also 

determined that after that date, claimant was capable of 

light-duty work and that claimant failed to establish lost 

earnings as a result of his light-duty restrictions. On appeal, 

the full commission found (1) there was no evidence claimant was 

fully able to perform the duties of his pre-injury employment, 

and (2) his earnings were less than his pre-injury wage.2 The 

 2

 They also found claimant failed to market his residual 

capacity for the period July 21 through August 27, 1999. 

- 2 -
commission opined "While Dr. Tham [claimant's treating 

physician] has not restricted the claimant's work hours, he has 

restricted his work capacity. We are not persuaded that 

employer is relieved of its duty to compensate the claimant who 

remains partially disabled." Employer appeals the commission's 

decision to award temporary partial disability benefits.3

II. 

 Employer first contends no credible evidence supports 

commission's finding that claimant was unable to return to his 

pre-injury employment. 

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

favorable to the claimant, who prevailed before the commission." 

Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d 

335, 340 (1998) (citations omitted). "A question raised by 

conflicting medical opinion is a question of fact." WLR Foods 

v. Cardosa, 26 Va. App. 220, 230, 494 S.E.2d 147, 152 (1997). 

"'Decisions of the commission as to questions of fact, if 

supported by credible evidence, are conclusive and binding on 

this Court.'" Id. (quoting Manassas Ice & Fuel Co. v. Farrar, 

 3

 Code § 65.2-502 provides in pertinent part: 

when the incapacity for work resulting from 

the injury is partial, the employer shall 

pay . . . weekly compensation . . . equal to 

66 2/3 percent of the difference between his 

average weekly wages before the injury and 

the average weekly wages which he is able to 

earn thereafter . . . . 

- 3 -
13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991)). "'The fact 

that there is contrary evidence in the record is of no 

consequence.'" Id. (quoting Wagner Enters., Inc. v. Brooks, 12 

Va. App. 890, 894, 407 S.E.2d 32, 35 (1991)). 

 On July 19, 1999, Dr. William Tham, claimant's treating 

physician, provided a doctor's certificate stating that claimant 

could return to work light duty on July 21, 1999. Dr. Tham 

stated "[r]estrict work on ladders or scaffolds – no lifting > 

25 lbs." In his report of November 4, 1999, Dr. Tham increased 

the amount of weight claimant could lift to 40 lbs. and 

restricted pulling motions. In his response to a questionnaire 

prepared by claimant's counsel, Dr. Tham stated claimant could 

return to work "regular hours" but continued his light-duty 

restrictions. 

 While claimant worked in a supervisory position both before 

and after his injuries, claimant testified that his injury and 

its residual effects had curtailed his job activities. 

Pre-injury, he was able to manipulate a 500-lb. spool of wire 

and work constantly on scaffolds and ladders. His new position 

with Consolidated Engineering Services (CES) was also 

supervisory in nature but he could not "lift, hoist, or move 

ladders as he did before his injury." He also tried to work a 

40-hour week but averaged 24 to 32 hours due to medical 

appointments. Employer presented no evidence to contradict 

- 4 -
claimant's description of the nature of his pre-injury and 

post-injury jobs. 

 "The threshold test for compensability is whether the 

employee is 'able to fully perform the duties of his 

pre[-]injury employment.'" Celanese Fibers Co. 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)). 

"[An] employer is relieved of its duty to compensate the 

claimant only if it offers the claimant employment in his or her 

"pre-injury capacity" and the claimant has been released to 

perform the work." Carr v. Virginia Elec. & Power Co., 25 Va. 

App. 306, 311-12, 487 S.E.2d 878, 881 (1997). 

 Credible evidence supports the commission's finding that 

claimant had continuing physical limitations as a result of his 

injury and was unable to return to his pre-injury position. 

III. 

 Employer next contends that claimant "self-limited" his 

hours and refused to work overtime, thus, causing his own wage 

loss. Employer argues that because there was no medical 

limitation on claimant's hours, he could recoup any salary 

differential through overtime. Employer concedes that no 

evidence in the record established overtime was available. The 

unrebutted evidence is claimant's pre-injury base rate wage not

including overtime was $21.96 per hour. His base rate wage not 

including overtime post-injury with employer was $18.30 per 

- 5 -
hour. His base rate wage with Kelly Electrical Services and CES 

was $17.55 per hour without overtime. Claimant has not earned 

his pre-injury average weekly wage since the date of injury. 

Employer also argues that by limiting his work hours due to 

"flare-ups" and failing to work overtime, claimant limited his 

wages. We disagree. 

 Employer contends that the rationale of Carr does not apply 

to the instant case because the record there affirmatively 

proved that no overtime was available to the employee in his 

light-duty capacity. Here, the record was silent as to the 

availability of overtime. We find this argument to be without 

merit. 

 We hold claimant is entitled to temporary partial 

disability benefits regardless of the availability of overtime 

because claimant was not released to work in his pre-injury 

position and his post-injury earnings did not equal or exceed 

his pre-injury income. For the foregoing reasons, the decision 

of the commission is affirmed. 

 Affirmed.

- 6 -