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NORFOLK SHIPBUILDING AND DRYDOCK CORP. v. GORSKI


NORFOLK SHIPBUILDING AND
DRYDOCK CORP. v. GORSKI

GORSKI v. NORFOLK
SHIPBUILDING AND DRYDOCK CORP.

(unpublished)


AUGUST 12, 1997
Record No. 3115-96-1

NORFOLK SHIPBUILDING AND DRYDOCK CORPORATION

v.

BARBARA DIANE GORSKI


Record No. 3131-96-1

BARBARA DIANE GORSKI

v.

NORFOLK SHIPBUILDING AND DRYDOCK CORPORATION

Present: Judges Coleman, Willis and Senior Judge Hodges
Argued at Norfolk, Virginia

MEMORANDUM OPINION[1]
BY JUDGE SAM W. COLEMAN III
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Bradford C. Jacob (Taylor & Walker, P.C., on briefs), for
Norfolk Shipbuilding and Drydock Corporation.

Gregory E. Camden (Rutter & Montagna, L.L.P., on briefs), for
Barbara Diane Gorski.


In this appeal from the Workers’ Compensation Commission, the
parties raise two issues. First, the claimant contends that the
commission erred by finding that she was not entitled to
temporary partial disability benefits from September 20, 1995 to
December 15, 1995, a period in which she had returned to work in
a light duty capacity but was not offered overtime work as she
had been offered in her pre-injury job. Second, the employer
contends that the commission erred in finding that the claimant
made a reasonable effort to market her residual work capacity.
For the following reasons, we reverse and remand the decision on
temporary partial disability benefits and we affirm the
commission’s decision on marketing.

TEMPORARY PARTIAL DISABILITY BENEFITS

Two recent decisions control the issue of whether the
partially disabled claimant is entitled to benefits because her
light duty job has not included overtime wages as did her
pre?injury work. In Carr v. Virginia Elec. & Power Co.,
___ Va. App. ___, ___ S.E.2d ___ (1997), and Consolidated
Stores Corp. v. Graham
, 25 Va. App. 133, 486 S.E.2d 576
(1997), we held that when a claimant who has not been released to
his or her pre-injury duties is offered and accepts light duty
work from 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 claimant’s
right to compensation due to an impaired capacity to perform
[her] pre-injury duties." Consolidated Stores, 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 or
her pre-injury wage. Thus, if a claimant who has not recovered
his or her "pre-injury capacity" suffers a wage loss in
the light duty position by virtue of the fact that 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 light duty position,
he or she is entitled to temporary partial disability benefits to
compensate for the wage loss incurred. See Carr,
___ Va. App. at ___, ___ S.E.2d at ___; Consolidated Stores,
25 Va. App. at 136-37, 486 S.E.2d at 578.

The uncontradicted evidence in this case proves that the
claimant consistently accepted overtime hours that were offered
to her in her pre-injury employment. However, in her light duty
employment, she was not offered overtime hours. The employee’s
average weekly wage earned prior to her injury was greater than
the average weekly wage earned in the light duty work because of
the lack of available overtime in the light duty work. Thus, she
may have suffered a post-injury loss in wages. Accordingly, we
reverse and remand for a calculation of temporary partial
disability benefits for the period of September 20, 1995 to
December 15, 1995, based upon an average pre-injury weekly wage
including overtime earnings.

MARKETING EFFORTS

In order to qualify for continuing benefits, a claimant who
has reached maximum medical improvement but remains partially
disabled has a duty to make a reasonable effort to market her
residual work capacity. National Linen Serv. v. McGuinn, 8
Va. App. 267, 269, 380 S.E.2d 31, 33 (1989). The burden is on the
claimant to show that she has made a reasonable effort to obtain
work but has been unable to do so. Washington Metro. Area
Transit Auth. v. Harrison
, 228 Va. 598, 601, 324 S.E.2d 654,
655 (1985). What constitutes a reasonable marketing effort is
determined by the facts and circumstances of each case. Great
Atl. & Pac. Tea Co. v. Bateman
, 4 Va. App. 459, 464, 359
S.E.2d 98, 100 (1987).

"In determining whether a claimant has made a reasonable
effort to market his remaining work capacity, we view the
evidence in the light most favorable to the prevailing party
before the commission." McGuinn, 8 Va. App. at 270,
380 S.E.2d at 33. The commission’s factual findings will be
upheld if supported by credible evidence in the record. Trammell
Crow Co. v. Redmond
, 12 Va. App. 610, 614, 405 S.E.2d 632,
635 (1991).

On this record, we hold that the evidence is sufficient to
support the commission’s finding that the claimant made a
reasonable effort to market her remaining work capacity. Claimant
made approximately twenty-five contacts between February and
April of 1996 in order to find work suitable to her residual
capacity. She registered with the Virginia Employment Commission
and contacted her union concerning job availability outside of
Norshipco. She reviewed want ads from the newspaper and made
several phone contacts from those ads. She also contacted a local
community college to get information on vocational training.
Claimant testified that she had difficulty applying for many jobs
due to transportation problems. The deputy commissioner made a
credibility finding that Gorski was making an honest effort to
search for work. Thus, we cannot say that she failed to make a
reasonable effort to market her residual work capacity.

Accordingly, we affirm the commission’s decision on marketing
and reverse and remand for a calculation of temporary partial
disability benefits, taking into account the claimant’s wage loss
due to an unavailability of overtime hours.

Affirmed in part,
reversed in part,
and remanded.

 

 

FOOTNOTES:

[1]
Pursuant to Code ? 17-116.010
this opinion is not designated for publication.

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