COURT OF APPEALS OF VIRGINIA 

Present: Judges Fitzpatrick, Overton and Senior Judge Duff 

Argued at Alexandria, Virginia 

DENNIS L. CARR 

 OPINION BY 

v. Record No. 2939-96-4 JUDGE JOHANNA L. FITZPATRICK 

 JULY 29, 1997 

VIRGINIA ELECTRIC & POWER COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 

 Wesley G. Marshall (Peter M. Sweeny & 

Associates, P.C., on briefs), for appellant. 

 Glenn S. Phelps (Ruth Nathanson; Midkiff & 

Hiner, P.C., on brief), for appellee. 

 Dennis L. Carr (claimant) appeals a decision of the Workers' 

Compensation Commission denying him an award of temporary partial 

disability benefits. He contends that the commission erred in 

failing to award him benefits for the time periods during which 

he performed light duty work but received no opportunities for 

overtime. For the reasons that follow, we reverse the decision 

of the commission. 

I. BACKGROUND 

 Claimant was employed with Virginia Power (employer) as a 

lineman for approximately twenty-three years. During his 

employment as a lineman, claimant's duties included "climb[ing] 

poles," "work[ing] out of a bucket truck," trouble shooting, 

building lines, and "restor[ing] service customers when they're 

out of lights." Claimant typically worked more than forty hours 

per week and regularly received overtime compensation. 

Additionally, claimant received bonus or incentive pay when he 
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"filled other shifts" or worked "outside of his department of 

geographic area." On July 5, 1995, claimant, who is left-handed, 

suffered a compensable injury resulting in the amputation of his 

left ring finger. 

 Subsequently, claimant was paid wages in lieu of 

compensation for periods of total incapacitation from July 6, 

1995 through August 5, 1995, and from September 26, 1995 through 

October 15, 1995. Claimant performed light duty work from August 

6, 1995 through September 25, 1995, and from October 16, 1995 and 

continuing. Claimant testified that he returned only to light 

duty work "[b]ecause my doctor says I can't do line work 

anymore." A letter from one of claimant's doctors states that 

claimant's injury "precludes him from performing all of his 

regular duties as an electrician." Claimant's light duty work 

included the following responsibilities: "some inspection work 

on [the] equipment, visual, just visual inspections, and . . . 

read[ing] some meters from time to time." During the light duty 

work, claimant worked "eight hours a day, 40-hour week." He 

received, during his light duty work, approximately $114.16 less 

per week than he received at his pre-injury work.1

 However, 

during his light duty work, he was neither offered overtime work, 

nor paid additional wages; nor did he receive any "shift 

differential." 

 1The commission calculated claimant's pre-injury average 

weekly wage to be $1,055.37. This amount is $114.16 more per 

week than claimant's weekly wage for his light duty work. 
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 At the hearing on April 12, 1996 before the deputy 

commissioner, claimant admitted that he sometimes declined or was 

unavailable to work overtime, that he had been disciplined for 

having low acceptance rates for overtime, and that he did not 

know exactly how much overtime he would have been offered. 

Finally, claimant testified that he knew that overtime had been 

offered to other linemen during the time period in question, and 

stated that he would have accepted such an opportunity if it had 

been offered. 

 David H. Driggs (Driggs), the construction superintendent, 

testified that there was no way to predict how much overtime 

would be available to any given employee from year to year, and 

that, in the past, claimant failed to maintain the amount of 

overtime required by the company. However, Driggs also testified 

that, during the past ten years, overtime had always been offered 

to linemen. 

 Following the hearing, the deputy commissioner denied 

claimant's request for temporary partial disability benefits for 

the wage loss allegedly resulting from his lack of overtime work, 

and found that "the reduction in earnings stems from purely 

economic factors unrelated to the accident. Therefore, the 

claimant has failed to prove a causal nexus between the accident 

and his loss of earnings." 

 On November 4, 1996, the full commission reviewed the record 

and found that "the claimant was not medically restricted from 
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working overtime and had not proven that his wage loss was due to 

medical restrictions from the industrial accident." The 

commission made no finding or classification as to the job title 

of claimant's light duty position relative to his pre-injury 

title of lineman. Accordingly, the commission affirmed the 

decision of the deputy commissioner that denied claimant 

temporary partial benefits for wages lost due to a lack of 

overtime work or shift differential. 

II. WAGE LOSS 

 Claimant contends that because he was offered light duty 

work without the opportunity to work overtime, shift 

differential, or out-of-business-area pay, he suffered a wage 

loss below his pre-injury wage. Additionally, claimant argues 

that his wage loss is properly attributable to his occupational 

injury, as medically imposed restrictions prevented him from 

performing his pre-injury job and receiving extra earnings, and 

it is therefore compensable under Code § 65.2-502.2

 

 2Code § 65.2-502, Compensation for partial incapacity, 

provides as follows: 

 Except as otherwise provided in 

§ 65.2-503 or § 65.2-510, when the incapacity 

for work resulting from the injury is 

partial, the employer shall pay, or cause to 

be paid, as hereinafter provided, to the 

injured employee during such incapacity a 

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, but not more than 100 percent of 

the average weekly wage of the Commonwealth 

as defined in § 65.2-500. In no case shall 
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 We recently addressed the issue of the impact of economic or 

business conditions on a partially disabled claimant's right to 

compensation. See Consolidated Stores Corporation, et al. v. 

Graham, ___ Va. App. ___, ___ S.E.2d ___ (1997). In that case, 

some time after her injury, claimant was authorized to perform 

light duty work. She was offered and she accepted a position as 

a sales clerk in which she made the same hourly wage as her preinjury position as a "stocker." However, "[d]ue to economic 

conditions, [employer] assigned [claimant] a reduced number of 

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

Consolidated, ___ Va. App. at ___, ___ S.E.2d at ___. Although 

the deputy commissioner found that "any diminution in hours 

worked was a product of the down turn in business," the full 

commission reversed and found that the claimant had not been 

"released to her pre-injury job and that she was not performing 

all her pre-injury duties" and that the "'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.'" 

Id. at ___, ___ S.E.2d at ___. 

 Finding that claimant was not released to her pre-injury 

 

the period covered by such compensation be 

greater than 500 weeks. In case the partial 

incapacity begins after a period of total 

incapacity, the latter period shall be 

deducted from the maximum period herein 

allowed for partial incapacity. 
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employment and that her light duty responsibilities as a store 

clerk were not commensurate with her pre-injury position of a 

stocker, we held that "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." Id. at ___, ___ S.E.2d at ___ (emphasis 

added). In reaching this decision, we relied on Code § 65.2-502: 

 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. Thus, by providing 

suitable alternative employment to a 

claimant, an employer may avoid paying 

compensation benefits. 

Id. Accordingly, we held that because claimant was neither 

released to return to her pre-injury duties, nor restored to her 

pre-injury capacity by the employer's offered alternative light 

duty work, the employer remained liable to fulfill its duty to 

compensate claimant. 

 The circumstances in Consolidated are remarkably similar to 

those of the instant case. Here, employer offered claimant light 

duty work similar in pay to his pre-injury employment as a 

lineman. As in Consolidated, however, claimant suffered a wage 

loss at the light duty position that he would not have incurred 

at his pre-injury placement. "The threshold test for 

compensability is whether the employee is 'able fully to perform 

the duties of his pre[-]injury employment.'" Celanese Fibers Co. 
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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)). Under the holding in Consolidated, the 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. In both 

Consolidated and this case, the employer failed to make this 

offer. Claimant, who made at least some overtime in his previous 

position, now makes none. The evidence demonstrated that other 

linemen continue to receive overtime and that claimant's range of 

duties in his light duty work is not equivalent to his pre-injury 

duties as a lineman. Thus, claimant has not been released to his 

pre-injury capacity as a lineman. Accordingly, employer's 

inability to predict the available overtime to the linemen during 

the period in question does not diminish claimant's right to 

compensation, as his work-related injury prevents him from 

performing lineman duties, and employer remains liable for the 

wage loss suffered by claimant. See also Davey Tree Expert 

Service Co. v. Acuff, 20 Va. App. 320, 456 S.E.2d 544 (1995) 

(holding that claimant is entitled to temporary partial 

disability benefits to compensate him for the loss of his 

capability to engage in his pre-injury work, where this loss is 

caused by work-related injury). 

 For the foregoing reasons, the decision of the commission is 

reversed and the case remanded for the commission to enter an 
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order consistent with this opinion. 

 Reversed and remanded.