                     COURT OF APPEALS OF VIRGINIA

Present:  Chief Judge Moon, Judge Fitzpatrick and
          Senior Judge Duff
Argued at Alexandria, Virginia

DAVEY TREE EXPERT SERVICE COMPANY
AND
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY
                                                   OPINION BY
v.   Record No.    1892-94-4                  JUDGE CHARLES H. DUFF
                                                   MAY 9, 1995
MORRIS ALLEN ACUFF

       FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           Robert C. Baker, Jr. (Mell, Brownell & Baker, on
           brief), for appellants.
           Nikolas E. Parthemos (Prosser, Parthemos & Bryant,
           P.C., on brief), for appellee.


     Davey Tree Expert Service Company ("Davey Tree" or

"employer") and its insurer appeal a decision of the Workers'

Compensation Commission awarding temporary partial disability

benefits to Morris Allen Acuff (claimant).    Finding no error, we

affirm the commission's decision.

     The facts are undisputed.    On June 6, 1989, claimant

suffered a compensable right ankle injury while working for Davey

Tree as a sales service technician, earning an average weekly

wage of $482.46.   Claimant's job entailed spraying and

fertilizing trees and shrubs, and general lawn care.   On February

1, 1990, claimant returned to his regular pre-injury work.    He

performed all of the duties of his pre-injury work until March

1992, when he voluntarily resigned from his job with Davey Tree.

Claimant testified that he resigned in order to take a full-time




                                  1
position with Preston County Senior Citizens, Inc. ("Preston") as

a dispatcher.    He stated that he took the dispatcher's job

because it was closer to his home, the work was easier, and there

were no seasonal layoffs.    He admitted that he did not resign

from his job with Davey Tree due to any doctor's orders.    The

dispatcher's job paid an average weekly wage of $280.

        On April 3, 1992, claimant suffered an injury at home to his

left ankle.    In its February 4, 1993 opinion, the commission

determined that this injury was a compensable consequence of

claimant's June 1989 work-related injury.    The employer did not

appeal this decision.    In April 1993, claimant underwent left

ankle surgery, and the employer paid him temporary total

disability benefits beginning April 6, 1993, based upon his

income with Davey Tree.    On June 14, 1993, claimant returned to

his regular, full-time duties as a dispatcher for Preston.     His

dispatcher job did not require walking and primarily involved

desk work.    At the time of his June 1993 release to return to

work, claimant was placed under restrictions, which would have

prevented him from returning to his pre-injury job with Davey

Tree.
        In August 1993, the employer filed an application seeking to

terminate the temporary total compensation benefits being paid as

the claimant had returned to work for Preston.    The claimant also

filed for a hearing to change the outstanding temporary total

award to temporary partial disability based upon the difference




                                   2
between his wages at Davey Tree and those he was earning at

Preston.   Employer argued that claimant's wage loss was caused by

his voluntary act of resigning from his pre-injury job prior to

the 1992 compensable consequence injury.   Employer further

asserted that, because claimant was able to return to full-time

employment with Preston following the 1992 compensable

consequence injury, he was not entitled to temporary partial

disability benefits.   Claimant contended that he was entitled to

an award of temporary partial disability benefits, because, as a

result of the 1992 compensable consequence injury, he no longer

had the capacity to perform all of the duties of his pre-injury

job with Davey Tree.
     In awarding temporary partial disability benefits to

claimant, the commission found as follows:
               In the case of partial incapacity
          resulting from a work injury, § 65.2-502
          mandates that compensation be paid to a
          claimant based on the difference between the
          average weekly wage before the injury and the
          average weekly wage that he is able to earn
          thereafter. Although post-injury earnings is
          the "best evidence" of the claimant's ability
          to earn, it is not the only factor that can
          be considered. Sorrell v. Westinghouse Elec.
          Corp., 48 O.I.C. 225. Clearly, however, the
          comparison to be made is between the job at
          which the claimant was engaged at the time of
          his injury versus what he is capable of doing
          after he has recovered from the injury and
          its compensable consequences. If in this
          case, claimant had recovered from the [1992]
          "compensable consequence injury" to the point
          that he could return to his pre-injury job
          with Davey Tree, then the claimant's current
          wage loss would continue to be due to his
          voluntary act rather then the work injury.
          However, the evidence is undisputed that the



                                 3
            claimant cannot return to his pre-injury work
            unless employer agrees to accommodate his
            restrictions. No evidence exists in the
            record that such an offer of accommodation
            was ever made. 1


       Our standard of review is as follows:
            This appeal does not present a case of
            conflicting evidence or a dispute concerning
            the commission's findings of fact. When the
            issue is the sufficiency of the evidence and
            there is no conflict in the evidence, the
            issue is purely a question of law. This
            Court is not bound by the legal
            determinations made by the commission. "[W]e
            must inquire to determine if the correct
            legal conclusion has been reached."

Cibula v. Allied Fibers & Plastics, 14 Va. App. 319, 324, 416

S.E.2d 708, 711 (1992) (quoting City of Norfolk v. Bennett, 205

Va. 877, 880, 140 S.E.2d 655, 657 (1965)) (other citations

omitted), aff'd, 245 Va. 337, 428 S.E.2d 905 (1993).

       Code § 65.2-502 provides for temporary partial disability

benefits equal to two-thirds of the difference between a

claimant's average weekly wage before the work-related injury and

the average weekly wage which he is able to earn thereafter.

(Emphasis added.)
               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
   1
     The commission noted that had the employer offered claimant a
position of any kind, and had claimant refused that job, then its
decision might have been different. However, no evidence was
presented to the commission that, had claimant still been employed
by employer at the time of his 1992 injury, employer would have
provided him work within his restrictions subsequent to his
recovery from that injury.




                                  4
             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) (citations omitted).

        The commission's legal conclusions, based upon its

undisputed findings of fact, are consistent with the plain

meaning of Code § 65.2-502 and the overall purpose of the

Workers' Compensation Act.
        Prior to his 1992 compensable consequence injury, claimant

was not restricted from performing any of the duties required of

him in his job with Davey Tree.    Claimant had voluntarily

resigned from that job and was no longer receiving disability

benefits.    After the 1992 compensable consequence injury and

claimant's subsequent surgery in April 1993, claimant was

released to return to his regular full-time work for Preston.

However, he was placed under restrictions which would have

prevented him from performing all of the duties required of him

in his pre-injury work for Davey Tree.    Thus, the commission

correctly determined that claimant was entitled to temporary

partial disability benefits to compensate him for this loss of

capability to engage in his pre-injury work.    The loss was caused

by claimant's 1992 compensable consequence injury and subsequent

surgery, not by his voluntary resignation from his job with Davey

Tree.

        The employer incorrectly focuses upon the fact that claimant



                                   5
was able to perform his full-time dispatcher duties without

restriction at the time of his June 1993 release.     Employer's

argument fails to recognize that claimant suffered a wage loss

because, if he desired to do so, he was no longer physically able

to perform his pre-injury work.    Claimant's ability to earn a

higher average weekly wage was impaired due to the compensable

consequence injury and not to his voluntary resignation.

Therefore, the commission did not err in awarding compensation

benefits to claimant.
        The cases cited by employer are distinguishable from this

case.    In Yager v. Noah P. Turner Landscaping, Inc., 68 O.I.C. 7

(1989), the claimant was offered a job which would have paid more

than his pre-injury work.    For reasons unrelated to his injury,

the claimant refused the offer and accepted a lower paying job

elsewhere.    In this case, no evidence was presented that employer

offered claimant a job within his restrictions after his 1992

compensable consequence injury and subsequent recovery.

Moreover, contrary to employer's assertion in its brief, no

evidence proved that claimant's voluntary resignation precluded

employer from offering him a modified position.

        In Baskerville v. Saunders Oil Co., Inc., 1 Va. App. 188,
336 S.E.2d 512 (1985); Raffield v. Prince William County Sch.

Bd., 62 O.I.C. 362 (1983); and Sorrell v. Westinghouse Elec.

Corp., 48 O.I.C at 226, the claimants voluntarily removed

themselves from the labor market.      There was no evidence of any



                                   6
loss of capacity to earn income, and thus, no compensation was

awarded.   In Chesapeake & Potomac Telephone Co. v. Murphy, 12 Va.

App. 633, 406 S.E.2d 190, aff'd en banc, 13 Va. App. 304, 411

S.E.2d 444 (1991), the claimant was denied partial compensation

benefits because he was terminated for cause from selective

employment.   Finally, in Eppling v. Schultz Dining

Programs/Commonwealth, 18 Va. App. 125, 442 S.E.2d 219 (1994),

the claimant's wage loss was caused by his wrongful act.   None of

these cases are factually similar to this appeal.
     For the reasons stated, we affirm the commission's decision.

                                         Affirmed.




                                 7
