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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).
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