Util. Trailer Mfg. Co. v. Testerman

Citation58 Va.App. 474,711 S.E.2d 232
Decision Date12 July 2011
Docket NumberRecord No. 1484–10–3.
PartiesUTILITY TRAILER MANUFACTURING COMPANY and Liberty Insurance Corporationv.Joshua G. TESTERMAN.
CourtCourt of Appeals of Virginia

OPINION TEXT STARTS HERE

Robert M. Himmel, Roanoke (Christopher M. Kite; Lucas & Kite, PLC, Roanoke, on brief), for appellants.(D. Edward Wise, Jr.; Arrington, Schelin & Herrel, on brief), for appellee. Appellee submitting on brief.Present: HALEY, PETTY and POWELL, JJ.HALEY, Judge.

INTRODUCTION

The Workers' Compensation Act (the Act) authorizes awards for lost wages resulting from an “incapacity for work resulting from” injury. Code § 65.2–500 et seq. The issue here for resolution is whether a furlough from work of pre-defined and limited duration, applicable to all manufacturing employees, both those with and without restricted work capacity, justifies an award for lost wages to a worker with restricted capacity, in the absence of evidence demonstrating a causal relationship between that restriction and the wage loss. We conclude such an award under these circumstances is not authorized by the Act.

FACTS

The facts may be succinctly stated:

As a result of an industrial accident he had as an hourly employee in the manufacturing line at Utility Trailer Manufacturing Company (“Utility”) on January 9, 2006, Joshua Testerman (claimant) was awarded medical benefits, temporary total disability benefits, and permanent partial disability. Claimant thereafter resumed his work as an hourly employee at Utility that same year in a manufacturing line position commensurate with his restricted work capacity. He has worked in that capacity at all times here relevant.

The plant manufacturing line was shut down from January 5 to January 9, 2009. All employees on that line were furloughed for this period. On March 11, 2009, claimant filed an application seeking [c]ompensation for total wage loss ... [f]rom January 5, 2009 [t]o January 9, 2009.”

William Weaver, the human resources manager who had worked at Utility for twenty years, testified that the manufacturing line was shut down that week for an annual “physical inventory count.” He testified that the inventory count is usually held “the first full week in January,” because “you cannot run manufacturing while we're doing physical inventory. You've got to stop everything and do accounts.” He further testified that every employee was informed verbally of that week-long shutdown, specifically the “start and end date,” and notice of the same was posted in the factory hallway. That posted notice is part of the record before us. He further testified, [w]e told them [the manufacturing employees] we were shut down for one week only.” 1 In short, since the need for manufacturing production traditionally slowed in January, it was in that month that the annual inventory was held.

At the hearing before a deputy commissioner, claimant testified as follows:

Attorney: And after January 9th did you return back to your light duty job?

Claimant: Yes, sir.

Q.: And have you continued to work it since that time?

A.: Yes, sir.

* * * * * *

Q.: ... you understood when you went out that it was for this period of time, a limited defined period of time, and that you'd be brought back right in at the end of that week?

A.: Yes, sir.

In addition to the foregoing, claimant testified he thought the week work stoppage developed because: [W]e was [sic] slow on work.” Claimant acknowledged there had been an annual inventory during the first week of January every year of the five years he had worked for Utility. Nonetheless he claimed, in contradiction to the testimony of William Weaver, that he had worked production during those prior inventories.

Finally, narrowing our inquiry: (1) the parties have stipulated that claimant adequately marketed his residual work capacity during the week of January 5–9, 2009; 2 (2) upon inquiry by the deputy commissioner as to whether the shutdown resulted from “an economic downturn,” counsel for employer replied: “Yes, just the plant closed for inventory. It's a combination of those two things. I think they both really come under the guise of the causation defenses.”; and (3) claimant returned to work following the shutdown at his same salary.

By opinion dated July 29, 2009, a deputy commissioner rejected employer's defense that the wage loss “was not causally related to” claimant's restricted capacity. Rather, relying upon Metro Mach. Corp. v. Sowers, 33 Va.App. 197, 532 S.E.2d 341 (2000), she awarded lost wage benefits because claimant's “ability to compete economically ... with co-workers ... attempting to find work during a lay-off, is permanently impaired.”

By opinion dated June 9, 2010, a majority of the commission affirmed, specifically adopting the deputy's reasoning. Testerman v. Utility Trailer Mfg. Co., 226–77–65, 2010 VA Wrk. Comp. Lexis 290 (Jun. 9, 2010). Dissenting, Commissioner Williams noted that the claimant “did not lose wages because of his impaired capacity, but he lost wages, as did his co-workers, because of the employer's shut-down.” Id. at *12. He continued: “A period of one week is simply of insufficient duration to reasonably conclude that the claimant's ability to obtain other light duty work was the result of his disability as opposed to some other cause.” Id. at *12–13. He concluded that the effect of the commission's decision placed claimant in a better position than his co-workers because of his disability without any showing that his disability had made him any less likely to find employment than his co-workers during the same period.” Id. at *13 (emphasis added).

ANALYSIS

Our analysis begins with a review of our cases relevant to the inquiry.

In Metro Mach. Corp., 33 Va.App. at 202, 532 S.E.2d at 343–44, “the majority of the company's work force was laid off solely for economic reasons,” on March 28, 1997. (Emphasis added.) This included Sowers, a restricted capacity employee. The layoff was of then undefined duration.3 Claimant sought and received unemployment benefits.” Id. at 202, 532 S.E.2d at 344. He further sought temporary total and temporary partial disability benefits under the Act. We rejected, as had the commission, the employer's defense that “because the layoff was plant wide and economic in nature, claimant was not entitled to disability benefits because his lack of work was unrelated to his injury.” Id. at 208, 532 S.E.2d at 347. We found a causal relationship because claimant's opportunity to engage in work was limited by his restricted capacity and [t]hus, he did not have the same ... ability as other [not restricted capacity] employees to find other employment.” Id. at 209, 532 S.E.2d at 347.

In Carr v. Va. Elec. & Power Co., 25 Va.App. 306, 309, 487 S.E.2d 878, 880 (1997), the commission had denied the claimant benefits, finding that he, a restricted capacity lineman, had lost overtime because of “purely economic factors unrelated to the accident.” We reversed, holding that business or economic conditions did not diminish employer liability for lost wages when other non-restricted capacity linemen “continue[d] to receive overtime” wages during “the [time] period in question.” Id. at 312, 487 S.E.2d at 881. Thus, we concluded there was a causal relationship between the overtime wage loss and the earlier injury.

In Consol. Stores Corp. v. Graham, 25 Va.App. 133, 486 S.E.2d 576 (1997), the injured hourly employee, formerly a stocker, returned to light-duty work as a sales person. Her hours were reduced as a sales person, according to Consolidated, because of a down turn in business. In affirming a wage differential award, we held that “the employer's financial condition and the availability of alternative work do not affect the claimant's right to compensation due to an impaired capacity to perform his pre-injury duties.” Id. at 137, 486 S.E.2d at 578.

Three factors are common to each of the foregoing cases: (1) the suspension or reduction of work for each claimant began or continued for an undefined duration; (2) by comparison with non-restricted employees, wages were lost; that is, Carr lost overtime compared with non-restricted linemen, Graham had fewer hours as a sales person than as a stocker, and Sowers' physical restrictions diminished his ability to find work compared to non-restricted co-workers; and (3) the causal relationship between the wage loss and the injury was established by the evidence.

The commission has also considered cases similar to the instant case, but in each of the following cases, one or more of the three above-noted factors are absent.

In Jones v. Genie Co., No. 166–97–76, 1998 VA Wrk. Comp. Lexis 4046 (Dec. 3, 1998), employer's plant closed from December 23, 1997 to January 8, 1998 for annual maintenance and repairs. All employees, including the restricted work claimant, were furloughed for that period. In denying the claim for lost wages, the commission wrote:

In this case, the claimant, like all of the ... other employees, did not work for two weeks because of the annual closing for repairs and maintenance. She did not lose wages because of her impaired capacity, but she lost wages, as did her coworkers, because of the shutdown and would have lost the wages in her pre-injury job. If the claimant were to receive benefits for the brief shutdown period, she would be in a better position than her coworkers because of her disability.

Id. at *4.

The commission continued:

While two weeks is not considered to be a long enough period to require marketing, it is also not a sufficiently long period to make a finding that a partially disabled worker is disadvantaged when all other employees are also out of work. This differs from a case where the shutdown is long-term and the employee, after a reasonable marketing effort, shows that the disability restricted alternative employment opportunities.

Id.

The commission was faced with similar circumstances in Rodriguez v. Stouffer Concourse Hotel, No....

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