USAir, Inc. v. Joyce

• Decision Date: 21 April 1998
• Docket Number: No. 0357-97-4,0357-97-4
• Citation: 497 S.E.2d 904,27 Va.App. 184
• Court: Virginia Court of Appeals
• Parties: USAIR, INC. and Reliance National Insurance Company v. Robert S. JOYCE. Record

Page 904

497 S.E.2d 904

27 Va.App. 184

USAIR, INC. and Reliance National Insurance Company v. Robert S. JOYCE.

Record No. 0357-97-4.

Court of Appeals of Virginia Alexandria.

April 21, 1998.

David A. Walsh (Hunton & Williams, on brief), McLean, for appellants.

No brief or argument for appellee.

Present: FITZPATRICK, C.J., ^* and BAKER and ANNUNZIATA, JJ.

BAKER, Judge.

USAir, Inc. (employer) appeals a decision of the Workers' Compensation Commission reinstating benefits to Robert S. Joyce (claimant). Employer contends on appeal that claimant's failure adequately to market his residual work capacity, as required by Code § 65.2-510, bars his receipt of benefits. For the reasons that follow, we hold that claimant had no duty to market his residual capacity under the facts of this case, and we affirm the commission's decision.

Claimant, a forty-two-year-old aircraft mechanic, suffered a compensable back injury by accident on September 30, 1992. Claimant received temporary total disability benefits which were suspended on April 27, 1994, based upon a finding that he refused medical treatment by treating with an unauthorized physician. On March 4, 1996, claimant saw Dr. Samuel Hawken, a physician selected from employer's designated panel. Dr. Hawken released claimant to light-duty work. Claimant subsequently filed a change-in-condition application for reinstatement of his benefits because he had cured his earlier refusal of medical treatment. Employer contested the reinstatement, arguing that claimant failed to market his residual work capacity.

The evidence established that after Dr. Hawken released claimant to return to light-duty work, claimant requested work within his capacity from his supervisor, Mr. Zee, and Ted Goodlander, employer's regional director. They advised claimant that no light-duty work was available. Claimant works for employer under a union contract which precludes his taking outside employment. As a consequence of this contractual limitation, claimant requested a "stipulation" from employer that he be allowed to market outside the company as a real estate agent without losing his job. Employer refused the request, and claimant made no further attempts to market his residual work capacity.

On January 31, 1997, the commission found that claimant had cured his earlier refusal and, under the facts of this case, had adequately marketed his residual capacity.

Dr. Hawkin [sic] released the claimant to light duty. He asked the employer whether he could return to work in a light duty job, and was informed that none was available at that time. He further asked the employer if he had permission to work elsewhere, as a real estate agent, and he was told that he could not do so. As the claimant explained, his contract of employment with USAir prohibits him from accepting employment elsewhere while on disability leave without the employer's authorization.

* * * * * *

[C]laimant has reasonably marketed under the circumstances. He offered to return to his pre-injury employer in a light duty capacity, but a selective employment position was not available at that time. He then sought authorization to obtain other employment while still remaining an employee and thus maintain eligibility for light duty.... As a matter of equity, the employer cannot have it both ways--on the one hand refusing to allow the claimant to market his capacity, and then denying compensation on the grounds that he has not marketed....

We find that the claimant acted reasonably and prudently in preserving his employment options with USAir, and seeking selective work with the company with whom he has a seventeen year employment history, rather than to go against the employer's dictates.

In order to receive continued benefits under a change-in-condition application, a partially disabled employee must prove that he made reasonable efforts to market his residual wage-earning capacity. See, e.g., Virginia Int'l Terminals v. Moore, 22 Va.App. 396, 401, 470 S.E.2d 574, 577 (1996) (citing National Linen Serv. v. McGuinn, 8 Va.App. 267, 269, 380 S.E.2d 31, 34 (1989)), aff'd, 254 Va. 46, 486 S.E.2d 528 (1997). "Upon judicial review of the commission's finding that a claimant has made a reasonable marketing effort, the Court must view the evidence in the light most favorable to the prevailing party." Greif Cos. v. Sipe, 16 Va.App. 709, 716, 434 S.E.2d 314, 318 (1993). However, "[w]here, as here, there is no conflict in the evidence, 'the question of the sufficiency of the evidence is one of law.' " CLC Constr. Inc. v. Lopez, 20 Va.App. 258, 267, 456 S.E.2d 155, 159 (1995) (quoting National Linen Serv., 8 Va.App. at 270, 380 S.E.2d at 33). "What constitutes a reasonable marketing effort depends on the facts and circumstances of each case." Sipe, 16 Va.App. at 715, 434 S.E.2d at 318.

Employer contends that claimant failed to prove he reasonably marketed his residual capacity. We disagree. Simply put, employer, by virtue of its employment contract with claimant, offered him an unacceptable choice: to forego workers' compensation benefits or lose his job. Employer sought to prevent claimant from obtaining the benefits intended by the legislature under the Workers' Compensation Act by refusing to waive its right to terminate claimant's employment if he accepted residual employment and then seeking to terminate his disability benefits because he did not seek such employment. We do not believe this result was intended by the legislature.

Our law requires a partially disabled employee to make reasonable efforts to market his residual wage-earning capacity in order to establish entitlement to disability compensation, see, e.g., National Linen Serv., 8 Va.App. at 269, 380 S.E.2d at 33, but that law may not fairly be applied to the facts of this case.

The purpose of the Workers' Compensation Act is to provide compensation to an employee for the loss of his opportunity to engage in work, when his disability is occasioned by an injury suffered from an accident arising out of and in the course of his employment. The Act should be liberally construed in harmony with its humane purpose.

Barnett v. D.L. Bromwell, Inc., 6 Va.App. 30, 33-34, 366 S.E.2d 271, 272 (1988) (en banc ) (citation omitted).

Here, the uncontradicted evidence proved that a provision of claimant's union contract with employer barred him from seeking outside work for the duration of his employment and that he would be fired if he obtained other employment. During a period of partial disability when employer did not offer claimant light-duty work, he requested a "stipulation" or waiver of the provision banning other employment in order to seek work as a real estate agent. Employer refused that request. Employer now seeks to use claimant's attempt to preserve his employment status, and his concomitant failure to market his residual capacity, to bar his claim for temporary total disability compensation. We hold, in keeping with the decision of the commission, that "[a]s a matter of equity, the employer cannot have it both ways--on the one hand refusing to allow the claimant to market his [residual] capacity [while maintaining his employment status], and then denying compensation on the grounds that he has not marketed." ¹

For these reasons, we hold that, where the employer has a contractual provision which bars a claimant from working in outside employment while he remains in that employ, and refuses to waive that provision during a period of work-related disability without providing a legitimate business reason for that refusal, claimant has no residual capacity and employer may not assert a "failure to market" defense.

Affirmed.

FITZPATRICK, Chief Judge, dissenting.

I respectfully dissent and would hold that claimant failed to establish that he reasonably marketed his residual work capacity. One factor to be considered in evaluating the reasonableness of a claimant's marketing efforts is the nature and extent of the job search. See ARA Servs. v. Swift, 22 Va.App. 202, 206, 468 S.E.2d 682, 684 (1996) (citing National Linen Serv. v. McGuinn, 8 Va.App. 267, 272, 380 S.E.2d 31, 34 1989)). Claimant may...