Dowden v. Hercules, Inc.

• Decision Date: 29 January 2008
• Docket Number: Record No. 1226-06-2.
• Citation: 655 S.E.2d 755,51 Va. App. 185
• Parties: William C. DOWDEN, Jr., Appellant, v. HERCULES, INC. and Aqualon Company, Appellees.
• Court: Virginia Court of Appeals

655 S.E.2d 755

51 Va. App. 185

William C. DOWDEN, Jr., Appellant, v. HERCULES, INC. and Aqualon Company, Appellees.

Record No. 1226-06-2.

Court of Appeals of Virginia.

January 29, 2008.

Stephen T. Harper (Kerns, Kastenbaum & Reinhardt, on brief), Richmond, for appellant.

Charles F. Midkiff (Angela F. Gibbs; Midkiff, Muncie & Ross, P.C., on brief), Richmond, for appellees.

Before FELTON, C.J, and ELDER, FRANK, HUMPHREYS, CLEMENTS, KELSEY, McCLANAHAN, HALEY, PETTY and BEALES, JJ.

Upon a Rehearing En Banc

By opinion dated May 8, 2007, a divided panel of this Court reversed and remanded the decision of the Virginia Workers' Compensation Commission. Dowden v. Hercules, Inc., 49 Va.App. 668, 644 S.E.2d 93 (2007). On July 3, 2007, we granted rehearing en banc, vacated the panel opinion, and stayed the mandate entered on that date. Dowden v. Hercules, Inc., 50 Va.App. 111, 646 S.E.2d 463 (2007).

Upon rehearing en banc, this Court's May 8, 2007 mandate is withdrawn and the commission's decision is reversed and remanded by unanimous vote of the full Court. Judges Elder, Humphreys, Clements, Petty and Beales vote to reverse and remand for the reasons stated in the separate opinion of Judge Clements. Chief Judge Felton, Judges Frank, Kelsey, McClanahan and Haley vote to reverse and remand for the reasons stated in the separate opinion of Judge Kelsey.

This order shall be published and certified to the Virginia Workers' Compensation Commission.

Opinion of CLEMENTS, J., with whom ELDER, HUMPHREYS, PETTY and BEALES, JJ., join.

William C. Dowden, Jr. (claimant) appeals a decision of the Virginia Workers' Compensation Commission (commission) terminating his temporary partial disability benefits because he did not timely cure his unjustified refusal of selective employment offered by Hercules, Inc. (employer). On appeal, claimant contends the commission erred in determining he did not partially cure his unjustified refusal of selective employment under Code § 65.2-510(B) when he timely procured selective employment paying less than the selective employment originally offered by employer. On May 8, 2007, a divided panel of this Court agreed with claimant and reversed the commission's decision. Dowden v. Hercules, Inc., 49 Va.App. 668, 644 S.E.2d 93 (2007). On July 3, 2007, we granted appellees' petition for a rehearing en banc, stayed the mandate of the panel decision, and reinstated the appeal. Upon rehearing en banc, we reverse the decision of the commission and remand.

I. BACKGROUND

The relevant facts are not in dispute. Claimant began working for employer in 1969. After thirty years of employment, he voluntarily applied for early retirement on August 23, 2000, pursuant to a buy-out offer designed to assist employer in reducing its workforce. On January 31, 2001, while his application for early retirement was pending, claimant injured his back at work. Prior to his injury, claimant earned an average weekly wage of $1,243.64 per week. Upon returning to light-duty work with employer, he earned a wage of $1,002 per week. The commission subsequently awarded claimant temporary partial disability benefits from February 1, 2001, and continuing, at a rate of $161.10 per week.

After claimant returned to light-duty work, he was notified that his application for early retirement had been approved. Claimant accepted employer's offer of early retirement and retired effective May 1, 2001. Employer continued to pay claimant $161.10 per week in temporary partial disability payments through July 13, 2003. On or around that date, employer discovered claimant had accepted employment as a sales associate with a friend's seafood company on March 10, 2003, earning $200 per week.

On July 24, 2003, employer filed an application with the commission seeking termination or suspension of claimant's award and credit for benefits paid from March 10, 2003 through July 13, 2003. Employer argued that claimant unjustifiably refused selective employment by voluntarily retiring and that he failed to cure his unjustified refusal. Claimant filed a change-in-condition application on September 5, 2003, seeking a continuation of his temporary partial disability wage-loss benefits of $161.10 per week. Claimant argued that he did not refuse selective employment when he retired, but, if the commission found he did, he cured that refusal on March 10, 2003, when he procured other selective employment.

Finding that claimant's voluntary retirement constituted an unjustified refusal of selective employment pursuant to Code § 65.2-510(A) and that claimant did not effectuate a cure within six months from the date of his retirement as required by Code § 65.2-510(C), the deputy commissioner granted employer's application and denied claimant's change-in-condition application. Upon review, the full commission agreed with the deputy commissioner that claimant unjustifiably refused selective employment when he voluntarily retired.¹ It disagreed, however, that Code § 65.2-510(C)'s six-month statute of limitations to cure the unjustified refusal began running on the date of claimant's retirement. Accordingly, the full commission remanded the case "for determination of the date the claimant's cure requirement began . . . and whether the claimant cured the unjustified refusal."

On remand, the deputy commissioner determined that, because claimant failed "to report his return to work on March 10, 2003," Code § 65.2-510(C)'s six-month statute of limitations to cure claimant's unjustified refusal began to run on that date.² The deputy commissioner then found that claimant failed to cure his unjustified refusal by September 10, 2003, and, thus, was not entitled to temporary partial disability benefits beyond March 10, 2003. In reaching that decision, the deputy commissioner found that claimant's employment paying $200 per week did not cure his unjustified refusal of selective employment because it was not comparable to the employment paying $1,002 per week he had refused.

Appealing the deputy commissioner's decision to the full commission, claimant asserted that his return to work selling seafood on March 10, 2003, constituted a cure of his unjustified refusal of selective employment under Code § 65.2-510(B). He argued that Code § 65.2-510(B) did not require him to obtain employment at a wage "comparable" to the wage he would have earned had he continued the selective employment offered by employer.

A majority of the full commission disagreed with claimant, holding that the employment an injured worker procures "must be at a wage comparable to that of the previously refused position" to constitute a cure under Code § 65.2-510. Accordingly, the commission affirmed the deputy commissioner's decision that claimant failed to cure his unjustified refusal of selective employment, noting as follows: "The claimant was earning $1,002 per week in his selective employment, and after his refusal, he began earning $200 per week. The evidence does not indicate that the employment he procured was comparable and effectuated a cure of his unjustified refusal of selective employment."

This appeal by claimant followed.

II. ANALYSIS

The sole issue on appeal is whether claimant's acceptance on March 10, 2003, of selective employment paying $200 per week was sufficient under Code § 65.2-510(B)³ to cure his unjustified refusal of selective employment offered by employer paying $1,002 per week. Relying on this Court's decisions in Food Lion, Inc. v. Newsome, 30 Va.App. 21, 515 S.E.2d 317 (1999), and Clements v. Riverside Walter Reed Hospital, 40 Va.App. 214, 578 S.E.2d 814 (2003), the commission concluded that claimant's procurement of the $200-per-week selective employment was not sufficient to cure his unjustified refusal because the wage he earned at that employment was not comparable to the wage he earned at the selective employment offered by employer. We hold that our decision in Hillcrest Manor Nursing Home v. Underwood, 35 Va.App. 31, 542 S.E.2d 785 (2001), and the express language of Code § 65.2-510(B) control the outcome of this case and require the opposite conclusion.

It is well settled that an injured employee who unjustifiably refuses selective employment offered by the employer is not "entitled to receive disability compensation during the continuance of the refusal." Virginia Wayside Furniture, Inc. v. Burnette, 17 Va.App. 74, 78, 435 S.E.2d 156, 159 (1993); see Code § 65.2-510(A). However, "once an employee has cured an unjustified refusal of selective employment, he . . . is entitled to reinstatement of benefits," Newsome, 30 Va.App. at 25, 515 S.E.2d at 319 (citing Code § 65.2-510), as long as the cure is effectuated within "six months from the last day for which compensation was paid before suspension pursuant to [Code § 65.2-510(A)]," Code § 65.2-510(C). The calculation of the employee's benefits following a timely cure depends on whether he fully cured the unjustified refusal or only partially cured it. Compare Newsome, 30 Va.App. at 25-26, 515 S.E.2d at 319-20 (addressing compensation following a full cure under Code §§ 65.2-510 and 65.2-502), with Hillcrest Manor Nursing Home, 35 Va.App. at 37, 39, 542 S.E.2d at 788, 789 (addressing compensation following a partial cure under Code § 65.2-510(B)).

A full cure occurs when the injured employee procures "other selective employment at a wage equal to or greater than" the wage of the refused selective employment. Newsome, 30 Va.App. at 23, 26, 515 S.E.2d at 318, 320. If the employee fully cures his unjustified refusal, he is entitled to "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 . . . he is able to earn thereafter." Code § 65.2-502 (emphasis added); see Newsome, 30 Va.App. at 25, 515 S.E.2d at 319 ("Once an employee cures an unjustified refusal of employment, Code § 65.2-510 returns the parties to their pre-refusal...