Great Atlantic & Pacific Tea Co. v. Bateman, 1046-86-1

CourtCourt of Appeals of Virginia
Citation359 S.E.2d 98,4 Va.App. 459
Decision Date21 July 1987
Docket NumberNo. 1046-86-1,1046-86-1
PartiesGREAT ATLANTIC & PACIFIC TEA COMPANY, et al. v. Jeffrey L. BATEMAN. Record

Charles F. Midkiff (William F. Etherington, Christian, Barton, Epps, Brent & Chappell, on brief), for appellant.

Richard B. Donaldson, Jr. (Jones, Blechman, Woltz & Kelly, P.C., on brief), for appellees.

Present: BARROW, COLE and HODGES, JJ.

COLE, Judge.

The appellants, Great Atlantic & Pacific Tea Company and Underwriters Adjusting Company, appeal from a decision of the Industrial Commission awarding compensation to the appellee, Jeffrey L. Bateman. Two issues are raised: (1) whether the Industrial Commission applied the proper standard of review to the claimant's application seeking a reinstatement of temporary total disability benefits; and (2) whether there was sufficient evidence in the record to support the commission's finding that the claimant made a reasonable effort to market his remaining work capacity. We do not decide the first issue because we find that the evidence was insufficient to support the commission's holding that the claimant made a reasonable effort to market his remaining work capacity; for this reason, we reverse.

On November 3, 1980, the claimant suffered a compensable injury when he fractured his right leg. He received temporary total and temporary partial disability benefits for various periods, the last being for total disability from March 26, 1984, through December 29, 1985. The claimant also received compensation from December 30, 1985, through May 1, 1986, for a ten percent permanent partial disability of his right leg. On April 30, 1986, he applied for reinstatement of temporary total disability benefits pursuant to Code § 65.1-56. A hearing was held on June 27, 1986, to resolve the issue.

The appellants contend that the Industrial Commission did not apply the proper standard of review to Bateman's application seeking reinstatement of temporary total disability benefits following payments for the ten percent permanent partial disability of his right leg. Bateman argues that he had an award from the Industrial Commission and was receiving temporary total compensation until a permanent disability rating was assigned to him as of December 30, 1985; that at that time he had no choice but to accept the permanent partial award; and that he now should be restored to his previous position. He contends that the burden of proof to show that he can return to his regular employment or had been offered or provided selective employment within his capacity or refused suitable selective employment was upon the appellants.

Compensation for loss of earnings due to an injury is governed by Code §§ 65.1-54 and 65.1-55. Benefits under these sections for total and partial incapacity compensate the employee for loss of earnings resulting from the injury. Compensation for loss of, or loss of use of a member, is provided for under Code § 65.1-56. The right to compensation under this section does not depend on incapacity for work or loss of earnings, but is indemnity for permanent loss of use, total or partial, of the injured member. Virginia Oak Flooring Co. v. Chrisley, 195 Va. 850, 856-57, 80 S.E.2d 537, 541 (1954); J.A. Foust Coal Co. v. Messer, 195 Va. 762, 766, 80 S.E.2d 533, 535 (1954). After the scheduled benefits for "loss of use" are paid under Code § 65.1-56, 1 the employee may be entitled to further benefits for loss of earnings under Code §§ 65.1-54 and 65.1-55.

In Pocahontas Fuel Co. v. Agee, 201 Va. 678, 112 S.E.2d 835 (1960), Agee, age forty-seven, had a seventh grade education and had no training or experience in any work other than the coal mines. Though he was unaware that he had silicosis when he was laid off on October 30, 1957, the medical evidence and his testimony proved that he was afflicted with silicosis to some degree at that time. During the latter part of 1958 and early 1959, he progressed to second stage silicosis and employment in the mines was barred to him because of his condition. The issue was whether the evidence before the commission was sufficient to find that the claimant suffered total work incapacity because of silicosis. The Supreme Court held that "[t]hough his physical disability was only partial, yet the award of total incapacity payments under § 65-51, Code 1950, [now Code § 65.1-54] was warranted if the commission could reasonably find from the evidence that because of his disability he was unable to market his remaining capacity for work." Id. at 681, 112 S.E.2d at 837.

In Pocahontas Fuel Co. v. Barbour, 201 Va. 682, 112 S.E.2d 904 (1960), a case factually similar to Agee and decided the same day, the Supreme Court quoted with approval one of the commissioners who said: "No injury or occupational disease is compensable as a total incapacity until it is proven that the injury or disease has effectually closed the labor market to the employee. A showing that he may not return to his former occupation is not such proof." Id. at 684-85, 112 S.E.2d at 906.

In Big D Quality Homebuilders v. Hamilton, 228 Va. 378, 322 S.E.2d 839 (1984), upholding award of temporary total disability benefits where the employer offered no selective work and claimant found four jobs for himself, the Supreme Court distinguished its decisions in Agee and Barbour. The court, explaining that the commission awarded them compensation for total disability for silicosis contracted in the coal mines, stated: "We held that although the burden was on the employees to prove that they were totally incapacitated for all work, they had failed to show that they could not perform any work or that they had made reasonable efforts to obtain other employment." Id. at 382, 322 S.E.2d at 841.

In Washington Metropolitan Area Transit Authority v. Harrison, 228 Va. 598, 324 S.E.2d 654 (1985), the claimant sustained a compensable injury on August 18, 1982. He received temporary total compensation under a memorandum agreement, but questioned the wage loss and filed an application for a hearing on November 24, 1982. At the hearing on March 1, 1983, the wage calculation was resolved against the employer. The question then arose whether Harrison was entitled to temporary total disability benefits beginning December 8, 1982, the day his employment was terminated for economic reasons. Following the rule it had applied in earlier cases, the commission held that Harrison " 'is entitled to the resumption of compensation benefits ... effective December 8, 1982 and continuing until he recovers from the effects of his injury and can return to his regular employment, or until other selective employment is obtained for him.' " Id. at 600, 324 S.E.2d at 655.

Harrison's contention was that he was in a better position than the claimants in Agee and Barbour because of the memorandum agreement and he claimed that in his case the employer had the burden of proof. In reversing the commission, the Supreme Court stated:

But, at the time Harrison's hearing was conducted, the Commission had entered no award, Harrison had not proved the nature or extent of his disability in that forum, and, while the question of compensability of the injury had been mooted by the agreement, Harrison's procedural posture as to his entitlement was otherwise no different than that of the claimants in Agee and Barbour. His disability, like theirs, was only partial, and to establish entitlement, he had the burden of proving that he had made a reasonable effort to procure suitable work but unable to market his remaining work capacity.

Id. at 601, 324 S.E.2d at 656.

Factually, we believe that a distinction can be made between this case and Agee, Barbour, Hamilton, and Harrison. Bateman did have an award under Code §§ 65.1-54 and 65.1-55 for temporary total and temporary partial benefits. These benefits were terminated when payments were paid to him for permanent partial benefits under Code § 65.1-56. However, we conclude that this is a distinction of no consequence. In order to prevail in this case the claimant must rely upon the language of Code § 65.1-56, which states: "After compensation has been paid as provided herein the employee may ... file an application for compensation for incapacity to work, subject to the provisions of §§ 65.1-54 and 65.1-55." The language of this statute places the burden upon the claimant to file an application. General principles of workman's compensation law provide that "[i]n an application for review of any award on the ground of change in condition, the burden is on the party alleging such change to prove his allegations by a preponderance of the evidence." Pilot Freight Carriers, Inc. v. Reeves, 1 Va.App. 435, 438-39, 339 S.E.2d 570, 572 (1986); see also J. A. Jones Construction Co. v. Martin, 198 Va. 370, 373, 94 S.E.2d 202, 204 (1956). We conclude that the burden of proof in this case is upon the claimant to prove all of the essential allegations of his case.

In Agee and Barbour, neither claimant had an award and thus both had the burden of proving a compensable accident or occupational disease. This was not difficult to do because the medical evidence establishing silicosis was well documented. However, they also had to prove entitlement to the temporary total or temporary partial benefits under Code §§ 65.1-54 or 65.1-55 by proving that they had made a reasonable effort to procure suitable work but were unable to market their remaining work capacity.

In Harrison, the agreement between the parties mooted the compensation issue because the parties agreed that the injury was compensable. However, Harrison still had the burden of proving his entitlement to benefits, and to do that he had the burden of proving that he made a reasonable effort to procure suitable work but was unable to market his remaining work capacity.

Having enunciated the principles upon which this case must be decided, we find that it is not...

To continue reading

Request your trial
46 cases
  • LINES v. KERR
    • United States
    • Court of Appeals of Virginia
    • April 12, 2011
    ...an employee to market residual work capacity." Favinger, 275 Va. at 89, 654 S.E.2d at 579 (quoting Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 467, 359 S.E.2d 98, 102 (1987)). Consequently, "[w]hat constitutes a reasonable marketing effort depends upon the facts and circumstances ......
  • G.C. Constr., L.L.C. v. Cruz, Record No. 1245-11-4
    • United States
    • Court of Appeals of Virginia
    • March 6, 2012
    ...he made a reasonable effort to procure suitable work and to market his remaining work capacity. See Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 100 (1987). '"The determination of whether a partially disabled employee has adequately marketed his residual work ca......
  • Util. Trailer Mfg. Co. v. Testerman
    • United States
    • Court of Appeals of Virginia
    • July 12, 2011
    ...is partial ....”) admits of no interpretation but that a causal relationship is required. See Great Atlantic & Pac. Tea Co. v. Bateman, 4 Va.App. 459, 461, 359 S.E.2d 98, 99 (1987) (“Compensation for loss of earnings due to an injury is governed by Code §§ 65.1–54 and 65.1–55. Benefits unde......
  • Starbucks Coffee Co. v. Shy
    • United States
    • Court of Appeals of Virginia
    • December 4, 2012
    ...that claimant experienced a change in condition that affected her right to compensation. See Great Atl. & Pac. Tea Co. v. Bateman, 4 Va.App. 459, 464, 359 S.E.2d 98, 101 (1987) (“General principles of workman's compensation law provide that ‘in an application for review of an award on the g......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT