                                         COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Felton, Judges Petty and McCullough
PUBLISHED


            Argued at Alexandria, Virginia


            CARNIE CARR, JR.
                                                                                OPINION BY
            v.     Record No. 1589-13-4                                JUDGE STEPHEN R. McCULLOUGH
                                                                                APRIL 8, 2014
            ATKINSON/CLARK/SHEA,
             A JOINT VENTURE, AND ST. PAUL FIRE
             AND MARINE INSURANCE COMPANY


                        FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                           M. Thomas McWeeny (Julie H. Heiden; Koonz, McKenney,
                           Johnson, DePaolis & Lightfoot, L.L.P., on brief), for appellant.

                           Alan D. Sundburg (Friedlander Misler, PLLC, on brief), for
                           appellees.


                   Carnie Carr, Jr., assigns error to the ruling of the commission denying him benefits

            during repeated furloughs of undefined duration. We agree and reverse.

                                                     BACKGROUND

                   Appellant has been restricted to light duty following a work-related accident. Due to the

            vagaries of the construction industry, his employer periodically furloughs nearly all of its

            employees for undefined periods of time, with the expectation that the employees will be hired

            anew once additional contracts are signed and permits are obtained. During these recurring

            furloughs, only the superintendent, the assistant superintendent, and the union steward remain on

            the payroll. Some of the furloughs are short, lasting one or two days. Others can last more than

            three weeks. Ordinarily, the employer will indicate to the employees the anticipated duration of

            the furlough. The employer would indicate, for example, that the furlough would “probably be a
week or two” or “it might be a week, might be a couple days, might be a couple weeks.”

Appellant sought compensation benefits for these undefined furlough periods.

       The deputy commissioner concluded that appellant was not entitled to benefits. The

commission, interpreting our decision in Utility Trailer Mfg. Co. v. Testerman, 58 Va. App. 474,

711 S.E.2d 232 (2011), affirmed.

                                           ANALYSIS

       The issue before us is a question of law, which we review de novo. Ratliff v. Carter

Mach. Co., 39 Va. App. 586, 589, 575 S.E.2d 571, 573 (2003).

       Code § 65.2-502(A) provides in relevant part that

               [W]hen the incapacity for work resulting from the injury is partial,
               the employer shall pay, or cause to be paid, as hereinafter
               provided, to the injured employee during such incapacity a weekly
               compensation equal to 66 2/3 percent of the difference between his
               average weekly wages before the injury and the average weekly
               wages which he is able to earn thereafter, but not more than 100
               percent of the average weekly wage of the Commonwealth as
               defined in § 65.2-500.

       An employer may choose to offer a partially incapacitated employee selective

employment, in which case the employer does not have to pay benefits. Big D Quality

Homebuilders v. Hamilton, 228 Va. 378, 381-82, 322 S.E.2d 839, 841 (1984). A partially

disabled employee who refuses “employment procured for him suitable to his capacity” loses

entitlement to certain benefits “during the continuance of such refusal, unless in the opinion of

the Commission such refusal was justified.” Code § 65.2-510(A).

       Several decisions from this Court have parsed whether a partially incapacitated employee

who has been provided selective employment is entitled to benefits when an employer

experiences a furlough or temporary layoff. In Consolidated Stores Corp. v. Graham, 25

Va. App. 133, 486 S.E.2d 576 (1997), an employee was injured while working as a stocker and

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later accepted selective employment as a sales clerk. Due to economic conditions, her employer

provided her with reduced hours at her pre-injury wage. Id. at 135, 486 S.E.2d at 577. We held

that the employee in question was entitled to continued benefits:

               [B]y providing suitable alternative employment to a claimant, an
               employer may avoid paying compensation benefits. However, 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.

               Ms. Graham was not released to return to her duties as a stocker.
               She was not restored to her pre-injury capacity. Therefore,
               Consolidated remains liable to Ms. Graham, because its duty to
               compensate her has not been eliminated by the provision of
               alternative light duty work.

Id. at 136-37, 486 S.E.2d at 578.

       Next, in Metro Mach. Corp. v. Lamb, 33 Va. App. 187, 196-97, 532 S.E.2d 337, 341

(2000), an employee was injured while working as a rigger. He accepted selective employment

as a forklift operator. Id. at 195, 532 S.E.2d at 340. The employer contended that the employee

was not entitled to benefits because his loss of wages was attributable not to his injury, but to a

layoff due to the loss of repair work for the United States Navy. Id. at 196, 532 S.E.2d at 341.

We rejected this argument, reasoning that

               After an economic layoff from selective employment, an employee
               remains entitled to benefits until he either fully recovers and is
               released to pre-injury work, or until the employer offers him other
               selective employment.

               The employer’s reasons for the layoff should not diminish the
               employee’s entitlement to benefits. The employee was injured on
               the job and his capacity to work reduced. . . . Until the employee
               can perform at his pre-injury capacity, he is protected from the
               economic vicissitudes of the market place. We conclude the
               employee’s layoff due to the employer’s economic downturn does
               not preclude his entitlement to disability benefits.

Id. at 196-97, 532 S.E.2d at 341 (citations omitted).

                                                -3-
       Finally, in Utility Trailer, we considered whether an employee who was working in a

selective employment position was entitled to benefits during a plant-wide shutdown for an

annual, week-long “physical inventory count.” 58 Va. App. at 476, 711 S.E.2d at 233. Looking

back on prior cases, we found that the presence of three factors accounted for the outcome in

each case where benefits were awarded:

               (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; . . . and (3) the causal
               relationship between the wage loss and the injury was established
               by the evidence.

58 Va. App. at 479-80, 711 S.E.2d at 234 (emphasis in original). The fundamental issue in these

cases, this Court explained, was whether the wage loss is causally related to the partial

incapacity. That is because “[l]oss of employment should not be deemed due to disability if a

worker without the disability would lose employment or suffer a reduction in earnings under the

same economic conditions.” Id. at 481, 711 S.E.2d at 235 (quoting 4 Arthur Larson & Lex K.

Larson, Larson’s Workers’ Compensation Law § 84.03 (2004)). The Court developed five

factors to help determine whether the wage loss was causally related to the injury:

               (1) the length of any furlough from work; (2) whether that furlough
               included all employees, restricted or not, of the same class; (3) the
               reason for the furlough; (4) whether the term of the furlough was
               pre-determined by the employer; and (5) whether employees were
               offered employment at the termination of the furlough.

Id. at 481-82, 711 S.E.2d at 235. On the facts before it, this Court reversed the award of benefits.

Utility Trailer by its plain terms represents a decision that is “limited in scope” and “addresses

only those cases where a partially incapacitated employee is furloughed.” Id. at 483, 711 S.E.2d

at 236 (emphasis in original).

       A combination of factors distinguishes this case from Utility Trailer. Here, the claimant

experienced repeated furloughs, each for an undefined duration. The furloughs took place due to
                                                -4-
the vagaries of the marketplace rather than a regularly scheduled maintenance event, and the

furloughs were not pre-planned by the employer. Instead, the furloughs were attributable to the

“vicissitudes of the market place.” Metro Machine, 33 Va. App. at 197, 532 S.E.2d at 341. Cf.

Graham, 25 Va. App. at 137, 486 S.E.2d at 578 (“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”).

       With a short furlough of a defined duration, particularly an annually recurring one as in

Utility Trailer, the employees, whether on selective employment or not, have little reason to seek

employment elsewhere. With recurring furloughs of an undefined duration, however, the injured

employee is placed at a disadvantage in seeking alternative employment, not only because his

capacity to work has been reduced due to a work-related injury, but also because Code

§ 65.2-510 constrains him as a practical matter to return to selective employment when it

resumes. Finally, weighing in the balance is the fact that the provisions of the Workers’

Compensation Act “should be liberally construed to carry out [‘the Act’s’] humane and

beneficial purposes.” Baggett Transp. Co. v. Dillon, 219 Va. 633, 637, 248 S.E.2d 819, 822

(1978). We hold that on these facts the injured employee was entitled to benefits.1

                                         CONCLUSION

       The decision of the commission is reversed and remanded for further proceedings

consistent with this opinion.

                                                                          Reversed and remanded.




       1
         The injured employee, however, must show a reasonable effort to market his remaining
work capacity, which will be determined by taking into account all of the facts and surrounding
circumstances. Ford Motor Co. v. Favinger, 275 Va. 83, 89-90, 654 S.E.2d 575, 578-79 (2008)
(quotations omitted).
                                             -5-
Petty, J., concurring.

       I concur in the opinion of the majority in all respects. I write separately simply to re-state

my belief that Utility Trailer Manufacturing Co. v. Testerman, 58 Va. App. 474, 711 S.E.2d 232

(2011), cannot be reconciled with our previous holding in Metro Machine Corp. v. Lamb, 33

Va. App. 187, 532 S.E.2d 337 (2000), and thus, under our doctrine of interpanel accord,2 was

wrongly decided. Testerman, 58 Va. App. at 484, 711 S.E.2d at 236 (Petty, J., dissenting).




       2
         “Under the interpanel accord doctrine, ‘the decision of one panel becomes a predicate
for application of the doctrine of stare decisis and cannot be overruled except by the Court of
Appeals sitting en banc or by the Virginia Supreme Court.’” Atkins v. Commonwealth, 54
Va. App. 340, 343 n.2, 678 S.E.2d 834, 835 n.2 (2009) (quoting Clinchfield Coal Co. v. Reed, 40
Va. App. 69, 73, 577 S.E.2d 538, 540 (2003)).

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