King William Cnty. v. Jones

• Citation: 66 Va.App. 531,789 S.E.2d 133
• Decision Date: 09 August 2016
• Docket Number: Record No. 0576–15–2.
• Parties: King William County and Virginia Association of Counties Group v. Linda Jones.
• Court: Court of Appeals of Virginia

66 Va.App. 531

789 S.E.2d 133

King William County and Virginia Association of Counties Group

v.Linda Jones.

Record No. 0576–15–2.

Court of Appeals of Virginia, Richmond.

Aug. 9, 2016.

J. David Griffin, Winchester (John D. Hasselberger; Winchester Law Group, P.C., on briefs), for appellants.

Robert L. Flax (Robert L. Flax, P.C., on brief), Richmond, for appellee.

Amicus Curiae: Virginia Trial Lawyers Association (Kathleen Grace Walsh, Occoquan; Gregory O. Harbison, Mechanicsville; Law Office of Kathleen Grace Walsh; Harbison & Kavanagh, PLLC, on brief), for appellee.

Present: HUFF, C.J., HUMPHREYS, PETTY, BEALES, ALSTON, CHAFIN, DECKER, O'BRIEN, RUSSELL, ATLEE and MALVEAUX, JJ.

UPON A REHEARING EN BANC

RUSSELL, Judge.

King William County and its insurer (“employer”) appealed the Commission's award of disability benefits to the claimant, Linda Jones, asserting multiple assignments of error. In a unanimous opinion, a three-judge panel of this Court affirmed the Commission regarding certain of its factual findings. King William County v. Jones , 65 Va.App. 536, 544–50, 779 S.E.2d 213, 217–20 (2015).¹ The panel, however, reversed the award of disability benefits, holding that claimant failed to establish that she was entitled to benefits because “the record does not support the conclusion that claimant's inability to obtain employment after being laid off was causally related to her partial disability ....” Id. at 556, 779 S.E.2d at 223.

Claimant sought en banc review, arguing in part that the panel decision “unfairly held that [claimant] did not prove that her unsuccessful search for work was due to her injury ....” Claimant also asserts that the panel decision was inconsistent with the prior decisions of this Court in Carr v. Atkinson/Clark/Shea, A Joint Venture , 63 Va.App. 281, 756 S.E.2d 191 (2014), and Utility Trailer Mfg. Co. v. Testerman , 58 Va.App. 474, 711 S.E.2d 232 (2011). Although, as will be discussed below, we find that the panel opinion is consistent with both Carr and Utility Trailer, we recognize that those cases are in conflict with our prior decisions in Metro Mach. Corp. v. Lamb , 33 Va.App. 187, 532 S.E.2d 337 (2000), and Metro Mach. Corp. v. Sowers , 33 Va.App. 197, 532 S.E.2d 341 (2000).² We granted rehearing en banc to resolve the conflict.

BACKGROUND

Even before reaching this Court, claimant's quest for benefits had an extensive and procedurally complex history, requiring multiple hearings before a deputy commissioner and resulting in two separate review opinions from the full Commission. Because the underlying factual and procedural history is fully set forth in the panel opinion, Jones , 65 Va.App. at 539–43, 779 S.E.2d at 215–17, we restate only the facts that are necessary to understand the issue before us.

Claimant worked as a part of employer's custodial staff for a number of years. On April 13, 2011, claimant fell from a ten-foot ladder while she was, as part of her duties, cleaning a window in the courthouse lobby. She suffered multiple injuries, and there is no dispute that the injuries arose out of and in the course of her employment. Despite her partial disability, she returned to work for her employer and worked in a light-duty capacity until June 30, 2011, when her work for employer ended.

Claimant's tenure with employer ended not because of her injury, but rather, because, prior to claimant's accident, employer decided to outsource its custodial needs. Specifically, it decided to eliminate all custodial positions and entered into a contract with a private entity, Jani–King, to provide the custodial services. Jani–King's services under the contract did not commence until July 1, 2011. During the interval between the decision to eliminate the custodial positions and the commencement of Jani–King's services pursuant to the contract, the existing members of employer's custodial staff, including claimant, continued to work in their respective positions.

Initially, none of employer's custodians were hired by Jani–King when it began performing its duties under the contract. Approximately one year after Jani–King began providing custodial services for employer, one of employer's former custodians was hired by Jani–King. Claimant never sought a position with Jani–King.

After her employment with employer ended, claimant unsuccessfully sought jobs in the area in which she lived. Although claimant's testimony established that she applied for jobs with various employers, there was no evidence that she was not hired because of her partial disability. In fact, there is no evidence that the prospective employers were even aware that claimant was under any medical restrictions.

The deputy commissioner denied claimant's application for benefits for multiple reasons, including a conclusion that the claim was barred by the economic loss rule because there was no causal connection linking claimant's lost wages to her injury. The full Commission reversed. The Commission determined that, because “the claimant was laid off from her selective employment job, she was entitled to continuing disability benefits[,]” and, citing Utility Trailer, found that “[w]ages were lost and there was a causal connection between the wage loss and the claimant's injuries.” Accordingly, the Commission awarded claimant benefits.³

Employer appealed to this Court, presenting multiple assignments of error. Of significance here, one of employer's assignments of error was that “[t]he Workers' Compensation Commission erred in its reversal of the [d]eputy [c]ommissioner's determination that the claimant's lost time was barred by the economic loss rule.” Although the Commission's opinion asserted that there was a causal relationship between claimant's economic loss and her injuries, the panel of this Court noted that the Commission “cited no evidence to support its conclusion[,] ... [and] the record ... is devoid of such evidence.” Jones , 65 Va.App. at 555, 779 S.E.2d at 222. Accordingly, the panel reversed.

Claimant sought rehearing en banc regarding the panel's resolution of the economic loss rule issue. This Court granted the motion for rehearing en banc on the question of whether the record supported a conclusion that claimant had suffered an economic loss as a result of her work-related injuries. For the reasons that follow, we hold that the record does not support such a conclusion and reverse the Commission's award of benefits.

ANALYSIS

I. Standard of Review

Employer contends that its responsibility to pay disability benefits to claimant ended when employer eliminated all of the custodial positions. Employer reasons that the loss of claimant's position was not caused by her partial disability, and therefore, she is not entitled to continued benefits. Claimant counters that employer is required to continue to pay her disability benefits because she remains partially disabled, and therefore, is at a disadvantage in the marketplace.

We review whether the elimination of positions terminates an employer's responsibility to pay continuing benefits to a partially disabled worker de novo . Carr , 63 Va.App. at 283, 756 S.E.2d at 192. In conducting our review, we are mindful that “the provisions of the [Workers'] Compensation Act are to be liberally construed,” but recognize that it was not intended to serve as a substitute for “unemployment insurance.” Vega Precision Labs., Inc. v. Jwayyed , 218 Va. 1026, 1032, 243 S.E.2d 228, 231 (1978). Finally, we review the evidence in the light most favorable to the claimant because she prevailed below and will reverse a factual finding of the Commission only if it is not supported by credible evidence in the record. VFP, Inc. v. Shepherd , 39 Va.App. 289, 292, 572 S.E.2d 510, 511–12 (2002).

II. Partial Versus Total Disability

It is important to recognize that, having returned to a light-duty position, claimant was only partially disabled as opposed to totally disabled. This is a significant distinction. McKellar v. Northrop Grumman Shipbuilding, Inc. , 290 Va. 349, 357, 777 S.E.2d 857, 861 (2015) (contrasting the different standards for claims of total disability under Code § 65.2–500 and claims of partial disability under Code § 65.2–502 ).

The standard in cases involving total disability is whether the injury caused a loss of earning capacity. As stated by the Supreme Court in McKellar, “an injured worker's status in the labor market is irrelevant where the worker's incapacity is total ... [, and thus,] the loss of earning capacity test is the proper standard for awarding compensation in cases of total incapacity under Code § 65.2–500.” Id. (emphasis added). In contrast, partial disability cases are not analyzed under the loss of earning capacity rubric, but rather, “Code § 65.2–502 presumes that where an injured worker is only partially disabled, that employee can continue working either on restricted duty or in an altogether new job. As a result, economic loss is the appropriate test for the compensation award in cases of partial incapacity ....” Id. (emphasis added).

The difference between loss of earning capacity and economic loss is more than mere semantics. A loss of earning capacity can be established at a high level of abstraction because “a[ totally] injured worker's status in the labor market is irrelevant.” Id. An economic loss analysis is far more granular, requiring proof that a claimant suffered an actual economic loss in the labor market and did not merely lose the theoretical capacity to perform abstract job functions.⁴

In a typical case of partial disability, the fact that a claimant's employment is terminated while on partial disability often may provide evidence of an economic loss. For example, if a partially disabled claimant cannot return to pre-injury employment with the employer even though her position continues to exist and the employer offers no selective employment consistent with the claimant's restrictions, a claimant has produced some evidence that she has suffered...