Ford Motor Co. v. Favinger, Record No. 062620.

• Court: Supreme Court of Virginia
• Citation: 654 S.E.2d 575
• Docket Number: Record No. 062620.
• Parties: FORD MOTOR COMPANY v. William K. FAVINGER.
• Decision Date: 11 January 2008

654 S.E.2d 575 FORD MOTOR COMPANY
v.
William K. FAVINGER. Record No. 062620. Supreme Court of Virginia. January 11, 2008.

[654 S.E.2d 576]

Barry J. Dorans (Samuel W. Meekins, Jr.; Wolcott River Gates, on briefs), Virginia Beach, for appellant.

Gregory E. Camden (Charlene A. Morring; Montagna Klein Camden, on brief), for appellee.

Present: All the Justices.

OPINION BY Justice CYNTHIA D. KINSER.

In this workers' compensation claim for temporary partial disability benefits, the dispositive issue is whether an employee made a reasonable effort to market his residual work capacity. Because the record contains no evidence that the employee did so, we will reverse the judgment of the Court of Appeals of Virginia that affirmed an award of benefits.

On September 11, 2002, while working for Ford Motor Company, William K. Favinger suffered an injury compensable under the Virginia Workers' Compensation Act (the Act), Code §§ 65.2-100 through 65.2-1310. Favinger received compensation benefits for various periods and was eventually released to return to light duty work on May 12, 2003. Prior to his injury, Favinger performed work in a body shop that required lifting up to 25 pounds, but the light duty work involved less physical exertion and consisted of work in an office setting and some "containment work" in the body shop. Since his return to light duty work, Favinger has received his pre-injury hourly wage.

On July 31, 2003, Favinger filed a change of condition application alleging entitlement to temporary partial disability benefits for the periods of May 12, 2003 through June 1, 2003 and June 10, 2003 through September

654 S.E.2d 577

21, 2003.¹ Favinger claimed that he earned less performing light duty work than he had earned in his pre-injury job because of the loss of overtime work offered by Ford.

A deputy commissioner denied Favinger's claim for temporary partial disability benefits. With respect to the issues before us, the deputy commissioner concluded Favinger did not show "that comparable workers in the body shop earned more overtime after May 12, 2003, than he was able to earn." The deputy commissioner also found that Favinger failed to carry his burden to "prove that he marketed his residual capacity and was unable, despite those efforts, to eliminate or mitigate his wage loss."

Favinger sought review of the deputy commissioner's decision by the Workers' Compensation Commission (Commission). The Commission awarded Favinger temporary partial disability benefits for various post-injury weeks in which his weekly wages were less than his pre-injury average weekly wages. The Commission concluded that Favinger did not have "to prove that comparable employees continued to receive overtime opportunities ... [because] they were free to pursue other employment opportunities if they became dissatisfied with less frequent overtime[; whereas, Favinger] was partially disabled as a result of a compensable work injury, and thus precluded from seeking employment comparable to his pre-injury position with other employers."

Ford appealed the Commission's decision to the Court of Appeals of Virginia. In an unpublished opinion, the Court of Appeals held that the Commission erred by failing to address whether Favinger had "adequately marketed his residual work capacity in order to recoup his lost overtime." Ford Motor Co. v. Favinger, Record No. 0112-05-1, 2005 WL 2493445, slip op. at 2 (October 11, 2005). The Court of Appeals thus reversed the award of benefits and remanded the case to the Commission for determination of that question. Id.

On remand, the Commission noted that Favinger testified during the hearing before the deputy commissioner that he did not seek other employment during the periods when Ford did not offer him overtime. The Commission, however, found that it was "unreasonable to expect [Favinger] to try to find additional employment over and above the [40] hours he was already working for the employer. Such work would likely interfere with any overtime which might become available." Thus, the Commission concluded "that under the circumstances of this case, [Favinger] did not have a duty to market his residual capacity during times when the employer did not offer overtime to any of its employees." The Court of Appeals subsequently held that Ford's appeal of the Commission's decision was without merit. Ford Motor Co. v. Favinger, Record No. 1254-06-1, 2006 WL 2669342 (September 19, 2006).

On appeal to this Court, Ford presents three assignments of error: (1) the Court of Appeals erred by sustaining the Commission's finding that Favinger established a causal link between his alleged wage loss and his work-related injury; (2) the Court of Appeals erred in upholding the Commission's award of benefits because Favinger failed to market his residual work capacity; and (3) the Court of Appeals erred by affirming the Commission's award of benefits that was based on Favinger's post-injury actual weekly wages instead of his post-injury average weekly wages. The second issue is dispositive of this appeal.

With regard to Favinger's marketing of his residual work capacity, Ford argues that, since Favinger's wage loss claim is based on the reduced amount of overtime that he worked after his injury, he must show that he sought work in addition to his normal 40-hour work week and could not find such employment because of his work-related injury. Ford challenges the Commission's conclusion that it was unreasonable to require Favinger to find work in excess of 40 hours

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and contends that there is no evidence to support the Commission's finding that part-time work might conflict with Favinger's duties at Ford. Ford acknowledges that, if Favinger had demonstrated that he tried to find additional work and that such work conflicted with his job at Ford, he would have satisfied his burden to market his residual work capacity.

In response, Favinger argues that his acceptance of a light duty job procured by Ford and his willingness to work overtime when offered by Ford demonstrates that he marketed his residual capacity to work more than 40 hours per week. He also contends that it would be unreasonable to expect him to work part-time for another employer because the hourly rate of pay would be significantly lower...