Washington Metropolitan Area Transit Authority v. Harrison, 831413

• Decision Date: 18 January 1985
• Docket Number: No. 831413,831413
• Citation: 324 S.E.2d 654,228 Va. 598
• Court: Virginia Supreme Court
• Parties: WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, et al. v. Ricky Thomas HARRISON. Record

Page 654

324 S.E.2d 654

228 Va. 598

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, et al. v. Ricky Thomas HARRISON.

Record No. 831413.

Supreme Court of Virginia.

Jan. 18, 1985.

Benjamin J. Trichilo, Fairfax (William L. Carey, Lewis & Trichilo, Fairfax, on briefs), for appellants.

Lawrence J. Pascal, Alexandria (Ashcraft & Gerel, Alexandria, on brief), for appellee.

Present: All the Justices.

PER CURIAM.

This is an employer's appeal from a decision of the Industrial Commission awarding worker's compensation benefits to a partially disabled employee.

Ricky Thomas Harrison (Harrison), a carpenter's apprentice, suffered an injury by industrial accident on August 18, 1982. Under a memorandum of agreement, Washington Metropolitan Area Transit Authority and its insurer, Lumbermens Mutual Casualty Company (collectively, the employer), paid Harrison temporary total disability benefits beginning August 19. Harrison questioned the accuracy of the wage-benefit calculation and, since the Commission had not entered an award approving the voluntary agreement, he filed an application for hearing on November 24.

On November 29, Harrison accepted the employer's offer of selective employment suitable to his limited capacity and returned to work at his pre-injury wage. Pursuant to a general reduction in force, however, Harrison and all but one of his fellow apprentices were terminated effective December 8. At the hearing, which was not conducted until March 1, 1983, the deputy commissioner resolved the wage-benefit issue against the employer. The question then arose whether Harrison was entitled to temporary total disability benefits beginning anew December 8, 1982. Although Harrison offered no evidence to show he had been unable to find alternative employment during the preceding three months, the deputy commissioner entered an award in his favor, and the employer requested review. The full Commission found that Harrison "was laid off ... for economic reasons, through no fault of his own." Affirming the award and citing the rule it had applied in earlier cases, the Commission held that he "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."

We limited the appeal to consideration of the employer's first assignment of error: "The Industrial Commission erred by awarding temporary total disability benefits subsequent to an economic lay-off without any evidence being offered by the claimant of his inability to market his remaining work capacity."

In March 1960, we decided three cases relevant to the question presented here. In each, a coal miner had become partially disabled on account of an occupational disease (silicosis) but was totally disabled to perform his regular employment. In Fuel Company v. Agee, 201 Va. 678, 112 S.E.2d 835 (1960), we reversed an award of temporary total disability benefits because we found that the claimant had not borne his burden of proving that he was "unable to market his remaining capacity for work." Id. at 681, 112 S.E.2d at 837. Repeating that holding in Fuel Company v. Barbour, 201 Va. 682, 112 S.E.2d 904 (1960), we said that "whether a workman, who is partially physically incapacitated, is able to obtain employment requires proof that a reasonable effort to procure work has been...