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TEMPORARY PARTIAL
Consolidated Stores Corporation, et al. v. Graham, 25 Va. App. 133, 486 S.E.2d 576 (1997). 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 pre-injury 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__. 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 __. "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, the court relied on Code Sec. 65.2-502: 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). Dennis L. Carr v. Virginia Electric & Power Company, 25 Va. App. 306, 487 S.E.2d 878 (1997), Record No. 2939-96-4 (July 29, 1997).
This Court's recent decisions in Carr v. Virginia Electric & Power Co., 25 Va. App. 306, 487 S.E.2d 878 (1997), and 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. Newport News Shipbuilding and Dry Dock Company v. Curtis L. Fawcett, Record No. 2410-98-1 (May 18, 1999). WP Version.
Code Sec. 65.2-502 provides for temporary partial disability benefits equal to two-thirds of the difference between a claimant's average weekly wage before the work-related injury and the average weekly wage which he is able to earn thereafter. The purpose of the Workers' Compensation Act is to provide compensation to an employee for the loss of his opportunity to engage in work, when his disability is occasioned by an injury suffered from an accident arising out of and in the course of his employment. The Act should be liberally construed in harmony with its humane purpose. Barnett v. D.L. Bromwell, Inc., 6 Va. App. 30, 33-34, 366 S.E.2d 271, 272 (1988) (en banc) (citations omitted).
In an earlier decision, the commission found that claimant suffered from a compensable occupational disease in that she had developed an allergic reaction to the chemicals in her workplace. The employer did not appeal that decision. Accordingly, any further consideration of whether claimant's original occupational disease is causally related to her employment is barred by res judicata. See K & L Trucking Co., v. Thurber, 1 Va. App. 213, 219, 337 S.E.2d 299, 302 (1985) (finding that the doctrine of res judicata is applicable to decisions of deputy commissioners and the full commission). Thus, the issue now on appeal is whether the evidence proves that claimant's current disability and allergic reactions are causally related to the industrial disease. Claimant's chemical sensitivity and her current sensitivity to other allergens in the environment are the same sensitivity that she developed due to the exposure to chemicals in the workplace. The commission's finding that claimant's chemical sensitivity is causally related to her exposure to the x-ray chemicals is supported by credible evidence. The finding that claimant is partially disabled because she has become "sensitized" as a result of her exposure to the chemicals in her pre-injury work is supported by credible evidence. In concluding that claimant has not recovered from her disability and, therefore, has not obtained her pre-injury status, the commission relied on its holdings in Blevins v. Smyth County Vocational School, VWC File No. 185-57-17 (July 1, 1998), and Pruett v. J & R Electric Contractor, Inc., VWC File No. 160-30-44 (Nov. 30, 1993). In Blevins, the claimant suffered from hypersensitivity pneumonitis. The claimant's treating physician opined that the claimant was "not disabled and has the capacity to do any other job in which such exposure would not be required." The physician further stated that the claimant "has been suffering from recurrent bouts of hypersensitivity pneumonitis related to exposure to work place allergens to which he has been sensitized. With removal of that exposure his hypersensitivity has resolved." The commission found, based on the physician's report, that the claimant was partially disabled. In Pruett, the claimant was an electric motor winder. In that capacity, the claimant frequently was exposed to fumes from soldering and welding, dipping the motors into a vat of epoxy or hot varnish, and cleaning the housing. The claimant began to experience respiratory problems and was diagnosed with industrial asthma. His treating physician opined that his condition was caused by exposure to fumes in the workplace. In finding that the claimant was disabled, the commission noted that the claimant's treating physicians opined that the claimant could not return to his pre-injury work because "he has become sensitized to chemicals to which he is exposed in that employment. Therefore, he has not reached his pre-injury employment status inasmuch as he was not sensitized before he became disabled." The commission's rationale in Blevins and Pruett is sound and persuasive. Credible evidence supports a finding that claimant is currently partially disabled in that she continues to suffer from symptoms related to the allergic chemical reaction and is unable to perform her pre-injury work. the commission did not err in determining claimant adequately marketed her residual work capacity. The commission found that claimant contacted, on average, at least two employers per week. She actively searched computer databases and newspaper classified advertisements. Although the rehabilitation counselor testified that claimant's school class schedule was an obstacle in obtaining employment, claimant testified that, if she found suitable employment that conflicted with her class schedule, she would withdraw from her classes. The evidence sufficient to support the commission's finding that claimant made a reasonable effort to market her residual capacity. Tidewater Physicians Multispecialty v. Harris, Record No. 2207-99-1 (May 30, 2000). WP Version.
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