                                         COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Huff, Judges Humphreys, Petty, Beales, Alston, Chafin, Decker, O’Brien,
PUBLISHED


                      Russell, AtLee and Malveaux
            Argued at Richmond, Virginia


            KING WILLIAM COUNTY
             AND VIRGINIA ASSOCIATION OF
             COUNTIES GROUP
                                                                               OPINION BY
            v.     Record No. 0576-15-2                                 JUDGE WESLEY G. RUSSELL, JR.
                                                                              AUGUST 9, 2016
            LINDA JONES


                                            UPON A REHEARING EN BANC

                        FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                           J. David Griffin (John D. Hasselberger; Winchester Law Group,
                           P.C., on briefs), for appellants.

                           Robert L. Flax (Robert L. Flax, P.C., on brief), for appellee.

                           Amicus Curiae: Virginia Trial Lawyers Association (Kathleen
                           Grace Walsh; Gregory O. Harbison; Law Office of Kathleen Grace
                           Walsh; Harbison & Kavanagh, PLLC, on brief), for appellee.


                   King William County and its insurer (“employer”) appealed the Commission’s award of

            disability benefits to the claimant, Linda Jones, asserting multiple assignments of error. In a

            unanimous opinion, a three-judge panel of this Court affirmed the Commission regarding certain

            of its factual findings. King William County v. Jones, 65 Va. App. 536, 544-50, 779 S.E.2d 213,

            217-20 (2015).1 The panel, however, reversed the award of disability benefits, holding that


                   1
                      Appellants did not seek en banc consideration of these issues. “[T]he grant of en banc
            review stays a panel decision pending review of those issues for which rehearing en banc has
            been granted but does not vacate it . . . .” Accordingly, “we address only the issues raised in
            [the] petition for rehearing en banc and reinstate the panel’s decisions regarding the [other]
            issues.” Holt v. Commonwealth, 66 Va. App. 199, 208, 783 S.E.2d 546, 550 (2016) (en banc);
            see also Rule 5A:35. Thus, for determination of the issue before us, it is established that
claimant failed to establish that she was entitled to benefits because “the record does not support

the conclusion that claimant’s inability to obtain employment after being laid off was causally

related to her partial disability . . . .” Id. at 556, 779 S.E.2d at 223.

        Claimant sought en banc review, arguing in part that the panel decision “unfairly held

that [claimant] did not prove that her unsuccessful search for work was due to her injury . . . .”

Claimant also asserts that the panel decision was inconsistent with the prior decisions of this

Court in Carr v. Atkinson/Clark/Shea, A Joint Venture, 63 Va. App. 281, 756 S.E.2d 191 (2014),

and Utility Trailer Mfg. Co. v. Testerman, 58 Va. App. 474, 711 S.E.2d 232 (2011). Although,

as will be discussed below, we find that the panel opinion is consistent with both Carr and Utility

Trailer, we recognize that those cases are in conflict with our prior decisions in Metro Mach.

Corp. v. Lamb, 33 Va. App. 187, 532 S.E.2d 337 (2000), and Metro Mach. Corp. v. Sowers,

33 Va. App. 197, 532 S.E.2d 341 (2000).2 We granted rehearing en banc to resolve the conflict.




claimant suffered work-related injuries, was partially disabled/in a light-duty status when her
employment with employer ended, and did not knowingly violate a safety rule in the accident
that led to her injuries. Jones, 65 Va. App. at 547-50, 779 S.E.2d at 219-20. The issue of
whether the economic loss test precluded the Commission’s award of disability benefits is fully
before us.
        2
          The panel opinion expressly noted the tension between the Metro Machine line of cases
and Utility Trailer, but noted that “in Carr, 63 Va. App. at 285-86, 756 S.E.2d at 192-93, we
cited both with approval, effectively concluding that they could be reconciled . . . .” Jones,
65 Va. App. at 552, 779 S.E.2d at 221. The panel opinion went on to note that, “[s]ubsequent to
Carr, we expressly recognized that Carr harmonized the decisions in Utility Trailer and [Metro
Machine].” Id. at 552 n.10, 779 S.E.2d at 221 n.10 (citing McKellar v. Northrop Grumman
Shipbuilding, Inc., 63 Va. App. 448, 455 n.3, 758 S.E.2d 104, 107 n.3 (2014), rev’d on other
grounds, 290 Va. 349, 777 S.E.2d 857 (2015)). Accordingly, the panel was required to treat the
two lines of cases as reconciled, but, because we are now sitting en banc, we are not so required.
Startin v. Commonwealth, 56 Va. App. 26, 39 n.3, 690 S.E.2d 310, 316 n.3 (2010) (en banc)
(noting that published panel opinions of the Court of Appeals “bind all other three-judge panels
under the interpanel accord doctrine . . . ; [however,] they do not bind the Court sitting en
banc”).
                                                 -2-
                                         BACKGROUND

       Even before reaching this Court, claimant’s quest for benefits had an extensive and

procedurally complex history, requiring multiple hearings before a deputy commissioner and

resulting in two separate review opinions from the full Commission. Because the underlying

factual and procedural history is fully set forth in the panel opinion, Jones, 65 Va. App. at

539-43, 779 S.E.2d at 215-17, we restate only the facts that are necessary to understand the issue

before us.

       Claimant worked as a part of employer’s custodial staff for a number of years. On April

13, 2011, claimant fell from a ten-foot ladder while she was, as part of her duties, cleaning a

window in the courthouse lobby. She suffered multiple injuries, and there is no dispute that the

injuries arose out of and in the course of her employment. Despite her partial disability, she

returned to work for her employer and worked in a light-duty capacity until June 30, 2011, when

her work for employer ended.

       Claimant’s tenure with employer ended not because of her injury, but rather, because,

prior to claimant’s accident, employer decided to outsource its custodial needs. Specifically, it

decided to eliminate all custodial positions and entered into a contract with a private entity,

Jani-King, to provide the custodial services. Jani-King’s services under the contract did not

commence until July 1, 2011. During the interval between the decision to eliminate the custodial

positions and the commencement of Jani-King’s services pursuant to the contract, the existing

members of employer’s custodial staff, including claimant, continued to work in their respective

positions.

       Initially, none of employer’s custodians were hired by Jani-King when it began

performing its duties under the contract. Approximately one year after Jani-King began




                                                -3-
providing custodial services for employer, one of employer’s former custodians was hired by

Jani-King. Claimant never sought a position with Jani-King.

       After her employment with employer ended, claimant unsuccessfully sought jobs in the

area in which she lived. Although claimant’s testimony established that she applied for jobs with

various employers, there was no evidence that she was not hired because of her partial disability.

In fact, there is no evidence that the prospective employers were even aware that claimant was

under any medical restrictions.

       The deputy commissioner denied claimant’s application for benefits for multiple reasons,

including a conclusion that the claim was barred by the economic loss rule because there was no

causal connection linking claimant’s lost wages to her injury. The full Commission reversed.

The Commission determined that, because “the claimant was laid off from her selective

employment job, she was entitled to continuing disability benefits[,]” and, citing Utility Trailer,

found that “[w]ages were lost and there was a causal connection between the wage loss and the

claimant’s injuries.” Accordingly, the Commission awarded claimant benefits.3

       Employer appealed to this Court, presenting multiple assignments of error. Of

significance here, one of employer’s assignments of error was that “[t]he Workers’

Compensation Commission erred in its reversal of the [d]eputy [c]ommissioner’s determination

that the claimant’s lost time was barred by the economic loss rule.” Although the Commission’s

opinion asserted that there was a causal relationship between claimant’s economic loss and her

injuries, the panel of this Court noted that the Commission “cited no evidence to support its

conclusion[,] . . . [and] the record . . . is devoid of such evidence.” Jones, 65 Va. App. at 555,

779 S.E.2d at 222. Accordingly, the panel reversed.


       3
        The Commission entered an award of $234.41 per week for disability benefits
beginning July 1, 2011, and reasonable and necessary medical benefits for the injuries to
claimant’s neck, back, left shoulder, ribs, and hands.
                                                 -4-
       Claimant sought rehearing en banc regarding the panel’s resolution of the economic loss

rule issue. This Court granted the motion for rehearing en banc on the question of whether the

record supported a conclusion that claimant had suffered an economic loss as a result of her

work-related injuries. For the reasons that follow, we hold that the record does not support such

a conclusion and reverse the Commission’s award of benefits.

                                            ANALYSIS

                                       I. Standard of Review

       Employer contends that its responsibility to pay disability benefits to claimant ended

when employer eliminated all of the custodial positions. Employer reasons that the loss of

claimant’s position was not caused by her partial disability, and therefore, she is not entitled to

continued benefits. Claimant counters that employer is required to continue to pay her disability

benefits because she remains partially disabled, and therefore, is at a disadvantage in the

marketplace.

       We review whether the elimination of positions terminates an employer’s responsibility

to pay continuing benefits to a partially disabled worker de novo. Carr, 63 Va. App. at 283, 756

S.E.2d at 192. In conducting our review, we are mindful that “the provisions of the [Workers’]

Compensation Act are to be liberally construed,” but recognize that it was not intended to serve

as a substitute for “unemployment insurance.” Vega Precision Labs., Inc. v. Jwayyed, 218 Va.

1026, 1032, 243 S.E.2d 228, 231 (1978). Finally, we review the evidence in the light most

favorable to the claimant because she prevailed below and will reverse a factual finding of the

Commission only if it is not supported by credible evidence in the record. VFP, Inc. v.

Shepherd, 39 Va. App. 289, 292, 572 S.E.2d 510, 511-12 (2002).




                                                -5-
                                 II. Partial Versus Total Disability

        It is important to recognize that, having returned to a light-duty position, claimant was

only partially disabled as opposed to totally disabled. This is a significant distinction. McKellar

v. Northrop Grumman Shipbuilding, Inc., 290 Va. 349, 357, 777 S.E.2d 857, 861 (2015)

(contrasting the different standards for claims of total disability under Code § 65.2-500 and

claims of partial disability under Code § 65.2-502).

        The standard in cases involving total disability is whether the injury caused a loss of

earning capacity. As stated by the Supreme Court in McKellar, “an injured worker’s status in the

labor market is irrelevant where the worker’s incapacity is total . . . [, and thus,] the loss of

earning capacity test is the proper standard for awarding compensation in cases of total

incapacity under Code § 65.2-500.” Id. (emphasis added). In contrast, partial disability cases are

not analyzed under the loss of earning capacity rubric, but rather, “Code § 65.2-502 presumes

that where an injured worker is only partially disabled, that employee can continue working

either on restricted duty or in an altogether new job. As a result, economic loss is the appropriate

test for the compensation award in cases of partial incapacity . . . .” Id. (emphasis added).

        The difference between loss of earning capacity and economic loss is more than mere

semantics. A loss of earning capacity can be established at a high level of abstraction because

“a[ totally] injured worker’s status in the labor market is irrelevant.” Id. An economic loss

analysis is far more granular, requiring proof that a claimant suffered an actual economic loss in

the labor market and did not merely lose the theoretical capacity to perform abstract job

functions.4


        4
          The dissent posits that, despite the language quoted above, the Supreme Court in
McKellar was not setting forth the appropriate tests for analyzing claims of partial versus total
disability, but rather, simply was engaged in an explanation of the “calculation of benefits.”
Such a reading is inconsistent with the Supreme Court’s repeated references to economic loss
and loss of earning capacity as tests or modes of analysis to be employed. See, e.g., McKellar,
                                                  -6-
          In a typical case of partial disability, the fact that a claimant’s employment is terminated

while on partial disability often may provide evidence of an economic loss. For example, if a

partially disabled claimant cannot return to pre-injury employment with the employer even

though her position continues to exist and the employer offers no selective employment

consistent with the claimant’s restrictions, a claimant has produced some evidence that she has

suffered an economic loss as a result of her injury—but for her work-related injury, she would

still be in her pre-injury position.5

                  III. Entitlement to Benefits in the Face of Layoffs and Furloughs

          The equation is different, however, when, as here, the claimant’s employment with

employer comes to an end because her position is eliminated along with the positions of her

able-bodied colleagues. In such cases, although a claimant will have lost wages, evidence is

required to establish that the loss of wages was caused by, or was in any way related to, her

injury.

          Professor Larson has summarized the general rule as follows: “Loss 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 . . . .” 7 Lex K. Larson,



290 Va. at 357-58, 777 S.E.2d at 861 (“Instead of applying the test for total incapacity as
delineated by Code § 65.2-500, the court and Commission below improperly conflated the
analyses for total incapacity and partial incapacity.” (emphasis added)). We do not believe the
Supreme Court’s word choice was the result of inadvertence. Accordingly, we give purpose and
full effect to the words used. We also note that our conclusion that McKellar is fairly read as
requiring that a partially disabled claimant establish a causal relationship between the
work-related disability and the claimed economic loss is shared by the Virginia Trial Lawyers’
Association, which, in a brief amicus curiae filed on claimant’s behalf, noted that McKellar
“[p]resumably . . . require[s] a partially disabled claimant to establish that their economic loss is
attributed to their work related disability, not some other unrelated reason.”
          5
        Such a showing does not, standing alone, entitle a claimant to benefits; she still would
be under an obligation to market within her restrictions. See, e.g., Ford Motor Co. v. Favinger,
275 Va. 83, 89-90, 654 S.E.2d 575, 578-79 (2008); Lynchburg Gen. Hosp. v. Spinazzolo, 22
Va. App. 160, 168, 468 S.E.2d 146, 150 (1996); see also Code § 65.2-510.
                                               -7-
Larsonʼs Workersʼ Compensation Law § 84.03 (Matthew Bender, rev. ed. 2015). Having stated

the general rule, Larson recognizes that it is simple to state, but difficult to implement, noting

that “whether this formula can be applied with any precision may be open to question.” Id. The

inconsistencies in our prior cases amply demonstrate this difficulty.

        A. The Metro Machine Cases

        In Lamb, a claimant who was under medical restrictions caused by a prior, compensable

accident sought wage benefits when he, along with other employees, was laid off “from selective

employment, due to the employer’s loss of Navy ship repair work” and resultant “plant shut

down.” 33 Va. App. at 196, 532 S.E.2d at 341. We affirmed the Commission’s award of

benefits. Reasoning that “[u]ntil the employee can perform at his pre-injury capacity, he is

protected from the economic vicissitudes of the market place,” we concluded that an

“employee’s layoff due to the employer’s economic downturn does not preclude his entitlement

to disability benefits.” Id. at 197, 532 S.E.2d at 341.

        Similarly, in Sowers, we affirmed the Commission’s award of benefits to a partially

disabled worker who was subject to a layoff, focusing on the injury’s effect on the worker’s

earning capacity in the abstract and noting that he was entitled to benefits because he “did not

have the same opportunity or ability as other employees to find other employment.” 33 Va. App.

at 209, 532 S.E.2d at 347. See also Consol. Stores Corp. v. Graham, 25 Va. App. 133, 137, 486

S.E.2d 576, 578 (1997) (“[T]he 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.”).

        B. Utility Trailer and Carr

        We returned to the issue in Utility Trailer. In Utility Trailer, the claimant had been

involved in a compensable accident working on a manufacturing line in 2006 and had returned to

                                                -8-
work for the employer on the manufacturing line in a light-duty capacity. In 2009, in order to

perform an inventory, employer furloughed all employees, including the claimant, for four days.

The claimant sought wage benefits for the four days of work he missed as a result of the

furlough. 58 Va. App. at 475-76, 711 S.E.2d at 232-33. The employer argued that the claimant

was not entitled to benefits because any wages lost during the furlough were not caused by his

partial disability, but rather, such loss was caused by the furlough of all of the manufacturing line

employees. A divided Commission found for the claimant and awarded benefits.

        We reversed. While acknowledging that a claimant limited to light-duty status could be

entitled to benefits under such scenarios, we held that he must establish that his partial disability

placed him at a disadvantage when compared to non-restricted workers and show that there was

a “causal relationship between his loss of wages and his injury.” Id. at 482, 711 S.E.2d at 236.

We concluded by holding that “[i]ndeed, the language of Code § 65.2-502 (‘when the incapacity

for work resulting from the injury is partial . . . .’) admits of no interpretation but that a causal

relationship is required.” Id. at 483, 711 S.E.2d at 236 (citations omitted). Finding that the

claimant had failed to meet these requirements, we reversed the Commission’s award of benefits.

        Next, in Carr, citing Utility Trailer with approval, we upheld an award of benefits to a

partially disabled worker who was subject to a furlough, but reiterated the established principle

that a partially disabled claimant seeking disability benefits in this scenario has the burden of

demonstrating that “the wage loss is causally related to the partial incapacity.” Carr, 63 Va. App.

at 285-86, 756 S.E.2d at 193.6 Cf. Pocahontas Fuel Co. v. Agee, 201 Va. 678, 681, 112 S.E.2d


        6
         We acknowledge that, in attempting to reconcile the conflicting lines of cases, the panel
in Carr not only cited Utility Trailer with approval, but also cited with approval both Lamb and
Graham, going so far as to quote Lamb’s reference to a partially disabled employee being
protected from the “vicissitudes of the market place.” Carr, 63 Va. App. at 286, 756 S.E.2d at
193 (quoting Lamb, 33 Va. App. at 197, 532 S.E.2d at 341). In quoting this language, however,
the Carr majority did not adopt Lamb’s rule of decision, which would have required it to address
only two questions: (1) Was the claimant partially disabled?; and (2) Was the claimant subject to
                                                -9-
835, 837 (1960) (holding that granting disability benefits to a worker who has been laid off is

“warranted if the Commission could reasonably find . . . that because of his disability he was

unable to market his remaining capacity for work” (emphasis added)); Pocahontas Fuel Co. v.

Barbour, 201 Va. 682, 684, 112 S.E.2d 904, 906 (1960) (stating that “[o]ne who has suffered a

partial physical disability may obtain total incapacity payments if, because of his disability, he is

unable to market his remaining capacity for work” (emphasis added)).

       C. Resolving the Inconsistency

       Thus, in the Utility Trailer and Carr line of cases, we have held that a claimant bears the

burden of establishing a causal link between the work-related partial disability and the claimed

economic loss. In contrast, the Metro Machine line of cases did not require such proof, allowing

the mere fact of disability and an unrelated loss of position to establish an entitlement to benefits.

       Despite our best efforts to harmonize both lines of cases, we now recognize that they

simply cannot be reconciled. For the reasons that follow, today we affirm the Utility Trailer

framework and overrule the Metro Machine line of cases.7

       We do so for a number of reasons. As noted above, cases consistent with the rationale of

the Metro Machine line of cases erroneously have evaluated partial disability claims using a loss



a furlough? If this were all that was required, Carr’s detailed discussion of the circumstances
surrounding the furlough, its undefined duration, and its relative effect on able-bodied workers as
opposed to partially disabled workers subject to the requirements of Code § 65.2-510 would have
been rendered superfluous. See, 63 Va. App. at 286-87, 756 S.E.2d at 193-94. Because such a
discussion is required by the Utility Trailer analysis, Carr, despite the citations to the Metro
Machine line of cases, is best understood as applying the rule of decision from Utility Trailer.
       7
         This includes Lamb, Sowers, Graham, and any other cases to the extent that they allow
for the award of disability benefits to a partially disabled worker without requiring proof that the
work-related injury caused the economic loss or otherwise analyze a claim for partial disability
by considering loss of earning capacity as opposed to economic loss. Contrary to the dissent’s
assertion, we do not overrule these cases because “they did not use the specific term ‘economic
loss;’” we overrule them because they employed an analytical framework for cases of partial
incapacity that cannot be reconciled with the express language of the Supreme Court’s decision
in McKellar.
                                                 - 10 -
of earning capacity analysis. See, e.g., Lamb, 33 Va. App. at 197, 532 S.E.2d at 341 (reasoning

that “[u]ntil the employee can perform at his pre-injury capacity” he is entitled to benefits

(emphasis added)); Sowers, 33 Va. App. at 209, 532 S.E.2d at 347 (focusing on the injury’s

effect on the worker’s earning capacity in the abstract and noting that he was entitled to benefits

because he “did not have the same opportunity or ability as other employees to find other

employment”); Graham, 25 Va. App. at 137, 486 S.E.2d at 578 (holding 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” (emphasis added)).

In McKellar, the Supreme Court made clear that this is the incorrect analysis because “economic

loss is the appropriate test for the compensation award in cases of partial incapacity . . . .” 290

Va. at 357, 777 S.E.2d at 861.

        By contrast, we analyzed the claim in Utility Trailer under the economic loss test,

focusing on whether the claimant had established that his partial disability placed him at a

disadvantage when compared to non-restricted workers and had been able to show that there was

a “causal relationship between his loss of wages and his injury.” 58 Va. App. at 482, 711 S.E.2d

at 236. Similarly, in Carr, our analysis required the claimant to establish that “the wage loss is

causally related to the partial incapacity.” Carr, 63 Va. App. at 286, 756 S.E.2d at 193. Thus,

consistent with the Supreme Court’s decision in McKellar, both Utility Trailer and Carr applied

the correct test, while the Metro Machine line of cases did not.8

        Our conclusion also comports with the basic notion that “[a] claimant still has the burden

of proving [her] entitlement to benefits . . . .” Ford Motor Co. v. Favinger, 275 Va. 83, 89, 654

S.E.2d 575, 578 (2008) (internal quotation marks and citation omitted). Adopting the rationale


        8
         We also note that McKellar, in addition to making clear that the economic loss rule is
the appropriate test in cases of partial disability, cites to our decision in Utility Trailer and does
not suggest that it is incorrectly decided. McKellar, 290 Va. at 358, 777 S.E.2d at 862.
                                                  - 11 -
of the Metro Machine line of cases would eliminate the requirement that a claimant demonstrate

that partial disability caused an economic loss, place a partially disabled claimant in a superior

position to the able-bodied workers who also were laid off, and essentially convert workers’

compensation benefits into unemployment benefits, which we cannot do. See Jwayyed, 218 Va.

at 1032, 243 S.E.2d at 231; see Agee, 201 Va. at 681, 112 S.E.2d at 838; Barbour, 201 Va. at

684-85, 112 S.E.2d at 906.

                         IV. Application of the Utility Trailer Framework

       To analyze whether a particular wage loss in such a scenario was due to the claimant’s

partial incapacity, Utility Trailer considered five factors. Carr succinctly summarized the five

considerations as follows:

               (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.

Carr, 63 Va. App. at 286, 756 S.E.2d at 193 (citation omitted).

       We acknowledge that, by its express terms, Utility Trailer “addresses only those cases

where a partially incapacitated employee is furloughed.” 58 Va. App. at 483, 711 S.E.2d at 236.

In context, the significance of the adverse employment action being a furlough was that it

applied to an entire class of workers, regardless of disability status, and not to individually

selected workers. Because the termination of the custodial positions also applied to an entire

class of employees regardless of disability status, the reasoning and rationale of Utility Trailer

applies with at least equal force here.




                                                - 12 -
       To conclude otherwise would create impermissible and anomalous results.9 If, unlike a

furloughed worker, a partially disabled worker who is laid off for reasons other than her

work-related disability is entitled, subject only to a marketing requirement, to disability benefits

during a period of unemployment, the Workers’ Compensation Act becomes, in both fact and

effect, nothing more than another form of unemployment insurance. The Act was not designed

as an alternative unemployment compensation system, and the Supreme Court expressly has

rejected constructions of the Act that “would engraft upon the Act a provision for unemployment

insurance . . . .” Jwayyed, 218 Va. at 1032, 243 S.E.2d at 231.10

       Furthermore, such a result leads to anomalous results in that it would place injured

employees in a superior position to their able-bodied colleagues and effectively eliminate the

requirement that the partially disabled worker demonstrate a causal relationship between her

injury and the claimed economic loss. Nothing in the Act or controlling precedent suggests, let

alone dictates, such anomalous results.11 Accordingly, we will apply the Utility Trailer

framework to claimant’s situation.



       9
          Our recognition that the interpretation championed by the dissent leads to anomalous
results is not, as the dissent suggests, our attempt to address questions of public policy. We
agree with the dissent that the public policy of the Commonwealth is set by the General
Assembly. Our disagreement is over what policy the General Assembly has set. Consistent with
the Supreme Court’s decisions in McKellar and Agee, we reiterate our holding from Utility
Trailer regarding the requirements of Code § 65.2-502: “Indeed, the language of Code
§ 65.2-502 . . . admits of no interpretation but that a causal relationship is required.” 58
Va. App. at 483, 711 S.E.2d at 236 (emphasis added) (citations omitted). The dissent concludes
that no such causal relationship is required.
       10
          The dissent agrees that the Act is neither designed nor intended to operate as a parallel
unemployment compensation system. Given that the dissent’s interpretation of the Act would, in
both fact and effect, have the Act serve as such a parallel system in this case, we reject that
interpretation.
       11
          Despite quoting portions of the Act at some length, the dissent points to no language in
the Act that actually dictates its conclusion or precludes the method of analysis set forth by the
Supreme Court in McKellar, which we adopt here.
                                                 - 13 -
       Here, the length of the layoff was definite; employer had eliminated permanently the

custodial positions, and thus, claimant’s potential marketing activities were not affected by her

possible recall to work, distinguishing her from the claimant in Carr. All of the custodial

positions were terminated with all employees of claimant’s class losing their jobs regardless of

whether or not they were subject to injury-related restrictions.

       The layoff was the result of a business decision made by the employer. Although we can

presume that it was done for economic benefit, there is nothing in the record to support a

conclusion that the decision was made as a result of a general economic downturn. Because

employer intended to eliminate the custodial positions permanently, the layoff and its length

were predetermined.

       Finally, no employees, whether subject to medical restrictions or not, were offered

custodial positions with employer going forward. The record reveals that only one of employer’s

former custodians eventually was hired by Jani-King, but that occurred a year after Jani-King

had undertaken providing the custodial services. Claimant never applied for a position with

Jani-King.12

       Our review of these considerations and the evidence leads inexorably to the conclusion

that claimant’s partial disability did not cause the loss of wages associated with the end of her

tenure with employer. The evidence is clear that the decision to terminate the custodial positions

was made prior to claimant’s work accident; therefore, it can be said to a certainty that her partial

disability did not cause the termination of her position or the positions of the uninjured



       12
         It is noteworthy that claimant never applied for a position with Jani-King. Based on
her own testimony, claimant essentially was performing all of the duties of a non-restricted
custodian at the time Jani-King assumed the contract for providing custodial services.
Claimant’s failure to apply leaves open the question of whether she essentially could have
continued to provide the same custodial services she previously had provided, albeit as an
employee of Jani-King.
                                              - 14 -
custodians who also were laid off.13 However, this is not necessarily dispositive. Claimant

would be entitled to disability benefits if the evidence demonstrated that she was denied or lost

other employment because of her partial incapacity. Agee, 201 Va. at 681, 112 S.E.2d at 838;

Island Creek Coal Co. v. Fletcher, 201 Va. 645, 648, 112 S.E.2d 833, 835 (1960).

       The Commission, citing Utility Trailer, found that “[w]ages were lost and there was a

causal connection between the wage loss and the claimant’s injuries.” The Commission,

however, cited no evidence to support its conclusion. Our review of the record reveals that it is

devoid of such evidence.

       Although there is evidence that claimant unsuccessfully sought employment with

numerous potential employers after being laid off by employer, there is no evidence that she was

unsuccessful because of her partial disability. Claimant’s testimony established that she applied

for jobs at various employers; however, there was no evidence suggesting that her injuries

rendered her unfit to perform the positions she sought or that she was not hired because of her

partial disability, a showing that is essential to her claim. Agee, 201 Va. at 681, 112 S.E.2d at

837-38; Barbour, 201 Va. at 684-85, 112 S.E.2d at 906-07. In fact, there is no evidence that the

prospective employers were even aware that claimant was under any medical restrictions,

making her situation materially indistinguishable from the claimant in Agee.14 As the Supreme

Court held in that case,


       13
           Given this undisputed fact, we disagree with the dissent’s characterization of the
decision to outsource the positions as being part of an impermissible “bait and switch.” Because
the decision regarding outsourcing the positions was made and known prior to claimant’s injury,
it is logically impossible to conclude that the decision was made as part of a scheme to trick the
yet-to-be injured claimant. There simply is no relationship, causative or otherwise, between the
decision to outsource the positions and claimant’s injury. The scenario of an employer seeking
to avoid paying disability benefits by terminating a class of workers that includes a worker or
workers receiving benefits is not before us.
       14
          Because Agee controls the outcome of the case in this regard, the dissent attempts to
distinguish Agee. It does so not by engaging the words used by the Supreme Court in Agee, but
                                             - 15 -
                 the evidence shows that when [the claimant] was laid off and
                 applied at other mines operated by the company, neither he nor the
                 company knew that he had silicosis. Employment was denied him
                 in each instance, not because of his disease but because he was not
                 on the panel at those mines.

Agee, 201 Va. at 681, 112 S.E.2d at 838. Because claimant’s relevant circumstances as revealed

by the record are materially indistinguishable from the claimant in Agee, she has not established

an entitlement to benefits.

       The Commission erred in this case by simply assuming that a failure to find work when

partially disabled is enough to establish a causal relationship. It is not. As the Supreme Court

held in Agee, where the claimant had a disability rating of 50%, “[n]o inference is warranted

from the degree of partial physical incapacity of [the claimant] that he could not obtain other

employment, and the evidence is insufficient to show that he made reasonable effort to obtain

other employment which was denied to him because of his partial physical incapacity.”15 201

Va. at 681, 112 S.E.2d at 838 (emphasis added). Accordingly, we reverse the Commission’s

award of disability benefits to claimant.16

       In reaching this conclusion, we note that our holding is based on the unremarkable

proposition that a partially disabled claimant bears the burden of establishing a causal link



rather, by discussing other cases that cite Agee. The other cases, however, do not address
situations where, as here and in Agee, an employee lost employment for reasons wholly
unrelated to the work-related injury. Additionally, the cases do not address the relevant language
from Agee upon which we rely. Given the significant similarities between the facts of this case
and Agee and the clarity of the language used by the Supreme Court in Agee regarding the
relevant issue, we simply apply Agee as written.
       15
          It is hard to imagine a more definitive statement that a claimant is required to establish
a causal connection between her partial incapacity and a subsequent failure to find new
employment. Given that the Supreme Court decided Agee in 1960, the dissent’s assertion that
“never, until now, has a disabled employee additionally been required to prove that her
marketing was unsuccessful because she is disabled . . .” is mistaken.
       16
            The Commission’s award of medical benefits to claimant is not affected by this
opinion.
                                                - 16 -
between a claimed economic loss and the work-related injury. This is the clear implication of

the Supreme Court’s decision in McKellar.17 The evidence established that claimant was laid-off

for reasons unrelated to her work-related injury, and claimant offered no evidence to establish

that her inability to find other employment was in any way related to her injury. Accordingly,

she failed to establish that she was entitled to disability benefits.18




        17
          As an intermediate appellate court, “we are bound by the decisions of the Supreme
Court of Virginia . . . .” O’Malley v. Commonwealth, 66 Va. App. 296, 301, 785 S.E.2d 221,
224 (2016) (internal quotation marks and citations omitted). It is not our function to avoid or
evade the clear implications of decisions of the Virginia Supreme Court by characterizing
unambiguous statements as dicta or by simply ignoring those decisions that lead to results that
are different from how we might decide an issue in the first instance. Our hierarchal system of
courts and a need for stability in the law mandate that we apply decisions of the Supreme Court
as they are written. To attempt to chart a different course less than a year after the Supreme
Court decided McKellar is not only impermissible, it unnecessarily would confuse the issue for
the Commission and the bar.
        18
           Nothing in this opinion restricts the evidence a partially disabled claimant in such a
scenario may offer to establish that a work-related injury prevented her from obtaining
employment, and thus, caused an economic loss. Claimant argues that we now essentially
require claimants to produce an express, written statement from potential employers that the
employers did not hire the claimant because of her restrictions. Although such a written
statement would likely establish the causal relationship, it is not the only means of proving that
an economic loss was caused by the work-related injury. See, e.g., Island Creek Coal, 201 Va. at
648, 112 S.E.2d at 835 (holding that a claimant with a work-related partial disability, who
obtained work with a new employer but had to quit the job because of the preexisting disability,
was entitled to disability benefits from the original employer because “he was willing to accept
other employment and did make an effort to work outside the mine but was unable to perform
that work”).
        Contrary to the dissent, nothing in our opinion today requires any changes in the way
partially disabled claimants market their residual capacity. Partially disabled claimants who lose
their initial employment for reasons unrelated to their disability continue to have an obligation to
seek out employment consistent with their capacities. If their attempts to find or keep
employment are thwarted as a result of their disability, they are entitled to benefits. If their
disability plays no role in their inability to find or keep a job, they are not. As noted throughout
our opinion, such a view is not new, but rather, is consistent with decisions of the Supreme Court
on this issue dating back more than a half-century. See Island Creek Coal, 201 Va. at 648, 112
S.E.2d at 835; Agee, 201 Va. at 681, 112 S.E.2d at 838; and Barbour, 201 Va. at 684-85, 112
S.E.2d at 906-07.
                                                  - 17 -
                                         CONCLUSION

       The essence of the workers’ compensation system is that an employee who suffers a loss

as a result of a work-related injury and resultant disability is entitled to compensation. The Act

was not intended to and does not provide benefits for losses that are wholly unrelated to a

workplace injury. For the foregoing reasons, we find that the record does not support the

conclusion that claimant’s partial disability caused her to suffer an economic loss, and therefore,

we reverse the Commission’s award of disability benefits.

                                                                                          Reversed.




                                               - 18 -
Petty, J., with whom Humphreys, J., joins, dissenting.

       The Workers’ Compensation Act provides that when an employee is injured on the job

and his capacity to work is reduced, he is protected from the economic vicissitudes of the market

place until the employee can perform at his pre-injury capacity. Metro Mach. Corp. v. Lamb, 33

Va. App. 187, 197, 532 S.E.2d 337, 341 (2000). At least, that was the law until today. Today,

based primarily on the Supreme Court’s brief mention of Code § 65.2-502 in McKellar v.

Northrop Grumman Shipbuilding, Inc., 290 Va. 349, 777 S.E.2d 857 (2015), the majority

overrules an entire line of cases. Today, the majority rejects decades of established precedent by

concluding that a partially-disabled employee who is laid off from light-duty employment

provided by her employer is eligible for benefits only if: (1) the layoff from light duty was

related to her injury and (2) in establishing that she adequately marketed her residual work

capacity, she provides evidence that her failure to procure other employment was specifically

because of her disability. Because neither the plain language of the Act nor the holding of

McKellar mandates this radical departure from the prior decisions of this Court and the Supreme

Court, I respectfully dissent.

                                          BACKGROUND

       Although the factual and procedural posture of this case as presented to the panel was

somewhat complex and convoluted, I agree with the majority that we must defer at this juncture

to the findings of the Commission and to the holdings of the panel that are not before this Court

for en banc reconsideration. Succinctly put, Linda Jones was employed as a custodian by King

William County. During the course of her employment, she fell and injured her shoulder.

Because of her partial disability, she was unable to return to her original job. The County

provided her with a light-duty job within her residual capacity at her previous wage level and, as

required by Code § 65.2-510, she accepted that employment. Accordingly, the County was not

                                               - 19 -
required to pay workers’ compensation. Two months later, the County implemented a previous

decision to outsource Jones’s light-duty job, and she was laid off. The County did not provide an

alternative light-duty job. Although Jones sought employment elsewhere, she was unable to find

a job within her restricted work capacity. She then sought workers’ compensation benefits. The

Commission concluded that Jones was partially disabled, that she had been laid off from the

light-duty job the County had provided, and, significantly, that she had reasonably, albeit

unsuccessfully, marketed her residual work capacity.19

                                             ANALYSIS

                   A. THE UNAMBIGUOUS REQUIREMENTS OF CODE § 65.2-502

        I begin with my disagreement with the majority’s holding that an employer can be

relieved of its obligation to compensate a partially-disabled employee if the “claimant’s

[light-duty] employment with employer comes to an end because her position is eliminated along

with the positions of her able-bodied colleagues.” The General Assembly’s provision for

partially-disabled employees simply provides no basis for the majority’s holding.

        The starting point of any analysis should be the relevant statute. Since the majority did

not include the statute in its analysis, I provide it here. Code § 65.2-502 provides in relevant

part:



        19
           The Commission found that Jones had reasonably marketed her residual work capacity.
King William County v. Jones, 65 Va. App. 536, 543, 779 S.E.2d 213, 217 (2015). Although
King William County assigned error to this factual determination, the panel declined to address it
in light of its decision to reverse on other grounds. Id. at 554 n.2, 779 S.E.2d at 217 n.2. The
County did not request en banc review of the panel’s decision on this assignment of error. Thus,
the Commission’s finding on this issue is final and constitutes the law of the case. See
Kondaurov v. Kerdasha, 271 Va. 646, 658, 629 S.E.2d 181, 188 (2006) (“Under [the] law of the
case doctrine, a legal decision made at one [stage] of the litigation, unchallenged in a subsequent
appeal when the opportunity to do so existed, becomes the law of the case for future stages of the
same litigation, and the parties are deemed to have waived the right to challenge that decision at
a later time.” (alterations in original) (quoting Va. Vermiculite, Ltd. v. W.R. Grace & Co.-
Conn., 108 F. Supp. 2d 549, 609 (W.D. Va. 2000))).
                                                 - 20 -
               [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.

(Emphasis added).

       The primary rule of statutory construction requires this Court to “give effect to the

legislature’s intention as expressed by the language used unless a literal interpretation of the

language would result in a manifest absurdity.” McKellar, 290 Va. at 354, 777 S.E.2d at 860.

“When the language of a statute is unambiguous, we are bound by the plain meaning of that

language.” Id. (quoting Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639

S.E.2d 174, 178 (2007)). And, “[this Court] must assume that ‘the legislature chose, with care,

the words it used when it enacted the relevant statute, and we are bound by those words as we

interpret the statute.’” Rasmussen v. Commonwealth, 31 Va. App. 233, 238, 522 S.E.2d 401,

403 (1999) (quoting Frazier v. Dep’t of Soc. Servs., Div. of Child Support Enforcement ex rel.

Sandridge, 27 Va. App. 131, 135, 497 S.E.2d 879, 881 (1998)).

       In clear and unambiguous language, Code § 65.2-502 provides three requirements

regarding the payment of compensation to a partially-disabled worker. First, the employer must

compensate an employee for his “incapacity for work resulting from [his] injury,” Code

§ 65.2-502(A) (emphasis added), not for his lost job. The Supreme Court has explicitly stated

that “[b]enefits awarded under [the predecessor to Code § 65.2-502] cover losses occasioned by

the impairment of the claimant’s earning capacity.” J.A. Foust Coal Co. v. Messer, 195 Va. 762,

766, 80 S.E.2d 533, 535 (1954) (emphasis added, alterations modified); see Smith v. Smith, 32

Va. App. 242, 249-50, 527 S.E.2d 463, 467 (2000) (“Benefits are for loss of earning power and

are ‘not necessarily proportional to the bodily functional disability.’” (quoting Foust, 195 Va. at
                                               - 21 -
765-66, 80 S.E.2d at 535)). Secondly, Code § 65.2-502 sets out the formula for calculating the

amount of compensation. An employee is entitled to two thirds of the difference between his

pre-injury average weekly wage and “the average weekly wage which he is able to earn

thereafter.” Code § 65.2-502. Finally, it designates the length of time during which a worker is

entitled to the compensation. The compensation must be paid “during such incapacity.” Id.

(emphasis added).

       The Act recognizes that although a partially incapacitated employee is unable to perform

his or her pre-injury job, the employee may be able to perform some other light-duty job. Thus,

“[i]n lieu of [compensation] . . . , the employer may provide his employee with selective

employment — that is, a job the employee can perform even though partially disabled, at wages

equal to his previous wage.” Util. Trailer v. Testerman, 58 Va. App. 474, 485-86, 711 S.E.2d

232, 237 (2011) (Petty, J. dissenting). Significantly, “[i]n such a case, the employee is not

entitled to compensation — not because he is no longer suffering a disability, but because the

difference between his pre-injury wages and the amount he is able to earn subsequent to the

injury is zero.” Id. at 486, 711 S.E.2d at 237. Finally, in the event the employer provides such

selective, light-duty employment, the employee is required to accept the offer or suffer

termination of compensation. Code § 65.2-510.

       Despite the Act’s plain language, the majority concludes that an employer can avoid

paying compensation by engaging in the very bait-and-switch shenanigans this Court has

rejected. See Scott v. Scott, 16 Va. App. 815, 819, 433 S.E.2d 259, 262 (1993) (“[The Act]

prevent[s] employers from lulling partially disabled workers into a false sense of security . . . by

providing employees light duty work at their pre-injury wage for two years and then terminating

the employee without liability for future disability benefits.”). It is undeniable that the County

could not have avoided paying compensation by eliminating, for economic reasons, Jones’s

                                               - 22 -
original job after she was injured. But, under the majority’s reasoning, it can accomplish the

same result by providing a light-duty job to Jones, a job she is required by statute to accept, and

then eliminating that job two months later. Even more troubling is the majority’s seeming

approval of the action because “the record establishes that the decision to terminate the custodial

positions [which Jones was performing as light-duty] was reached prior to claimant’s work

accident.” The majority thus establishes that an employer who places an injured employee in a

light-duty position it has already planned to eliminate can avoid its compensation obligations by

subsequently laying off that employee. I simply think that such a view renders toothless the

employee’s protections under Code § 65.2-502.

       I believe that a correct interpretation of Code § 65.2-502 would conclude that Jones

suffered an “incapacity for work resulting from [her] injury,” Code § 65.2-502, resulting in

“impairment of [her] earning capacity,” Foust, 195 Va. at 766, 80 S.E.2d at 535, for which she

was entitled to compensation “during such incapacity,” Code § 65.2-502. Because she cannot

find employment, she is entitled to total incapacity payments. See Big D Quality Homebuilders

v. Hamilton, 228 Va. 378, 382, 322 S.E.2d 839, 841 (1984) (“The Commission may properly

find that an employee’s wage loss may be total because of partial physical incapacity.”). It is

illogical to suggest, as the majority does, that “such a result leads to anomalous results in that it

would place injured employees in a superior position to their able-bodied colleagues and

effectively eliminate the requirement that the partially disabled worker demonstrate a causal

relationship between her injury and the claimed economic loss.” On the contrary, the “layoff

placed [Jones] in a different position from the other, uninjured, employees. [Her] ‘opportunity to

engage in work’ was limited by [her] permanent physical restriction due to [her] compensable

injury. Thus, [s]he did not have the same opportunity or ability as other employees to find other

employment.” Metro Mach. Corp. v. Sowers, 33 Va. App. 197, 209, 532 S.E.2d 341, 347

                                                - 23 -
(2000). The Commission’s finding that she made reasonable efforts to find other employment

within her work capacity but was unable to do so is proof of this fact.

                   B. MCKELLAR DOES NOT REQUIRE A DIFFERENT ANALYSIS

       The majority reasons that the Supreme Court’s use of the terms “earning capacity” and

“economic loss” to distinguish compensation under Code § 65.2-500 and Code § 65.2-502

respectively is “more than mere semantics”—suggesting one statute is capable of “a high level of

abstraction” and the other is “far more granular.” The majority therefore felt compelled to

overrule opinions from this Court because they did not use the specific term “economic loss.”20

See supra at 11 (“In McKellar, the Supreme Court made clear that [the analysis used in those

cases] is the incorrect analysis because ‘economic loss is the appropriate test for the

compensation award in cases of partial incapacity.’” (quoting McKellar, 290 Va. at 357, 777

S.E.2d at 861)). However, I believe the Supreme Court simply recognized in McKellar that the

respective statutes require different calculations.

       That the term “economic loss” refers to the calculation of benefits and not entitlement to

benefits is clear from the Supreme Court’s analysis in Newton v. Fairfax County Police


       20
          Regardless of the terms used, the cases overruled by the majority today held true to the
analysis required by the plain language of Code § 65.2-502. See Metro Mach. Corp. v. Sowers,
33 Va. App. 197, 208, 532 S.E.2d 341, 347 (2000) (focusing on Code § 65.2-502’s requirement
that claimant receive “the difference between his average weekly wages before the injury and the
average weekly wages which he is able to earn thereafter,” and rejecting employer’s argument
that claimant was not entitled to disability benefits because the layoff was plant-wide and
economic in nature); Metro Mach. Corp. v. Lamb, 33 Va. App. 187, 196-97, 532 S.E.2d 337, 341
(2000) (“The employer’s reasons for the layoff should not diminish the employee’s entitlement
to benefits. . . . Until the employee can perform at his pre-injury capacity, he is protected from
the economic vicissitudes of the market place.”); Carr v. Va. Elec. & Power Co., 25 Va. App.
306, 311, 487 S.E.2d 878, 881 (1997) (holding that “[a]s in [Graham], . . . claimant suffered a
wage loss at the light-duty position that he would not have incurred at his pre-injury placement”
and was thus entitled to compensation); Consol. Stores Corp. v. Graham, 25 Va. App. 133,
136-37, 486 S.E.2d 576, 578 (1997) (“During a period of partial incapacity, a claimant
performing work remains entitled to compensation benefits . . . [and] 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.”).
                                                - 24 -
Department, 259 Va. 801, 529 S.E.2d 794 (2000). In that case, the Supreme Court expressly

agreed with this Court’s reliance on Arlington County Fire Department v. Stebbins, 21 Va. App.

570, 573, 466 S.E.2d 124, 126 (1996). See Newton, 259 Va. at 804, 529 S.E.2d at 796 (holding

“there was no economic loss” where claimant had no wages in the preceding year). In Stebbins,

this Court concluded that “[t]he reason for calculating the average weekly wage is to

approximate the economic loss suffered by an employee or his beneficiaries when there is a loss

of earning capacity because of work-related injury or death.” Stebbins, 21 Va. App. at 573, 466

S.E.2d at 126 (emphasis added) (quoting Bosworth v. 7-Up Distrib. Co., 4 Va. App. 161, 163,

355 S.E.2d 339, 340 (1987)); see also Smith, 32 Va. App. at 249, 527 S.E.2d at 467 (“The reason

for calculating the average weekly wage is to approximate the economic loss suffered by an

employee . . . when there is a loss of earning capacity because of work-related injury.”21

(alteration in original) (quoting Bosworth, 4 Va. App. at 163, 355 S.E.2d at 340)).

       Clearly, “[u]sage of these terms [loss of earning capacity and economic loss] is hardly

uniform; over many decades the Court of Appeals and [the Supreme] Court have used both these

terms with regard to total disability.” McKellar, 290 Va. at 360 n.1, 777 S.E.2d at 863 n.1

(McClanahan, J., concurring). Simply put, the two terms are often used interchangeably.

Therefore, like Justice McClanahan, “I query the foundation for the majority’s reliance upon a

rigid dichotomy that loss of earning capacity applies to total disability while economic loss

applies to partial disability.” Id. Instead, I believe the focus must remain on the unambiguous



       21
          Importantly, Smith recognized that the relevant “economic loss” was the incapacity
suffered by the employee because of the “work-related injury,” Smith, 32 Va. App. at 249, 527
S.E.2d at 267, and not because the employee subsequently could not find alternative work. The
majority conflates the two. Based on McKellar, the majority concludes that requiring a claimant
to prove the reason for her subsequent inability to find employment “comports with the basic
notion that ‘[a] claimant still has the burden of proving [her] entitlement to benefits . . . ,’”
quoting Ford Motor Co. v. Favinger, 275 Va. 83, 89, 654 S.E.2d 575, 578 (2008)). I do not
believe McKellar requires this additional burden.
                                                - 25 -
language of Code § 65.2-502 requiring that employers compensate an employee for “the

incapacity for work resulting from the injury . . . during such incapacity” in an amount equal to a

percentage “of the difference between his average weekly wages before the injury and the

average weekly wages which he is able to earn thereafter,” irrespective of the employer’s

economic concerns.

       I am confident the Supreme Court intended its McKellar analysis to be an explanation of

the calculation of benefits, rather than a basis for the majority’s new requirement that a

partially-disabled worker prove the reason for her post-injury wage loss.22




       22
           I note that Justice McClanahan recognized that the plain language of Code § 65.2-500
governed the analysis in McKellar. McKellar, 290 Va. at 360, 777 S.E.2d at 863 (McClanahan,
J., concurring). Thus, any discussion of partial incapacity was not essential to the disposition in
the case; it was non-binding dicta. The Supreme Court could not have intended that its dicta
would be the basis for this Court’s overhaul of its stare decisis. “Stare decisis cannot be
properly applied without ‘the need to distinguish an opinion’s holding from its dicta.’” Newman
v. Newman, 42 Va. App. 557, 565, 593 S.E.2d 537 (2004) (en banc) (quoting United States Nat’l
Bank of Ore. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 425, 431 (2001)). “Dicta in a prior
decision generally refers to that portion of an opinion ‘not essential’ to the disposition in the
case.” Id. Simply put, “[d]icta cannot ‘serve as a source of binding authority in American
jurisprudence.’” Id. at 566, 593 S.E.2d at 538 (quoting United States v. Pasquantino, 336 F.3d
321, 329 (4th Cir. 2003) (en banc)). I note the Supreme Court’s admonition:

               It is a maxim not to be disregarded, that general expressions, in
               every opinion, are to be taken in connection with the case in which
               these expressions are used. If they go beyond the case, they may
               be respected, but ought not to control the judgment in the
               subsequent suit when the very point is involved for decision. The
               reason of this maxim is obvious. The question before the court is
               investigated with care and considered in its full extent. Other
               principles which may serve to illustrate it are considered in their
               relation to the case outside, but their possible bearing on the very
               case is seldom completely investigated.

Va. Ry. & Power Co. v. Dressler, 132 Va. 342, 350-51, 111 S.E. 243, 245-46 (1922) (quoting
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821)). Thus, although the Supreme Court’s
McKellar dicta may be instructive, I believe it “ought not to control the judgment in [this]
subsequent suit.” Id. at 351, 111 S.E. at 246.
                                               - 26 -
       Further, I am confident the Supreme Court could not have intended “economic loss” to be

a new “test” for benefits as the majority suggests. Although the Court stated that “economic loss

is the appropriate test for the compensation award in cases of partial incapacity,” it did not define

an “economic loss test,” neither did it point to any of its precedent defining the term. Indeed,

McKellar appears to be the only Supreme Court case referring to economic loss as a “test.” If

the Court had intended that this Court apply a rigid dichotomy between Code § 65.2-500 and

Code § 65.2-502, which are identical in their language regarding award and differ only in

calculation, surely the Court would have clarified the distinguishing features between the two

“tests.” Knowing that the terms “economic loss” and “loss of earning capacity” have been used

interchangeably in Virginia appellate courts for decades, McKellar, 290 Va. at 360 n.1, 777

S.E.2d at 863 n.1 (McClanahan, J., concurring), then surely the Court would have established

criteria for a new “economic loss test.”23 Of course, it had no reason to do so since partial

disability was not the issue being addressed in McKellar.

     C. THE MAJORITY’S NEW REQUIREMENT FOR MARKETING RESIDUAL WORK CAPACITY

       Recognizing the distinction between a totally disabled employee and one who has the

ability to perform some work, Code § 65.2-510 permits an employer to offer the partially

disabled employee a light-duty job “suitable to his capacity.” If the employee unjustifiably

refuses this light-duty employment, the employer is no longer required to pay benefits. On the

other hand, as the majority notes, if “the employer offers no selective employment consistent

with the claimant’s restrictions, a claimant has produced some evidence that she has suffered an


       23
           See, for example, the Supreme Court’s analysis and criteria in National Linen Serv. v.
McGuinn, 8 Va. App. 267, 272, 380 S.E.2d 31, 34 (1989), when it first established factors to
determine “whether a partially disabled employee has made reasonable effort to find suitable
employment commensurate with his abilities,” and the Court’s subsequent reiteration of those
criteria in Favinger, 275 Va. at 89-90, 654 S.E.2d at 578. Similar analysis, criteria, and citation
are completely missing from the Court’s McKellar reference to an “economic loss test.”

                                               - 27 -
economic loss as a result of her injury—but for her work-related injury, she would still be in her

pre-injury position”; but the employee “would still be under an obligation to market within her

restrictions.”

        It is well established that in a claim for partial disability, “the employee ‘[has] the burden

of proving that he [has] made a reasonable effort to procure suitable work but [is] unable to

market his remaining work capacity.’” Ford Motor Co. v. Favinger, 275 Va. 83, 89, 654 S.E.2d

575, 578 (2008) (quoting Wash. Metro. Area Transit Auth. v. Harrison, 228 Va. 598, 601, 324

S.E.2d 654, 656 (1985)). But never, until now, has a disabled employee additionally been

required to prove that her marketing was unsuccessful because she is disabled. Rather, the

Supreme Court has consistently focused on the claimant’s good faith, albeit unsuccessful, efforts

to market remaining work capacity. See id. at 90, 654 S.E.2d at 579 (establishing criteria for

what constitutes reasonable efforts to market remaining work capacity).

        The majority believes that Pocahontas Fuel Co. v. Agee, 201 Va. 678, 112 S.E.2d 835

(1960), and Pocahontas Fuel Co. v. Barbour, 201 Va. 682, 112 S.E.2d 904 (1960), require the

claimant to prove that her failure to find light-duty employment was a result of her disability.

The Supreme Court has never interpreted these cases in this fashion. Rather, the Supreme Court

explained that its decisions in Agee and Barbour were predicated on the fact that the claimants

“had failed to show that they could not perform any work or that they had made reasonable

efforts to obtain other employment.” Hamilton, 228 Va. at 382, 322 S.E.2d at 841.

        In contrast, the Hamilton Court “approve[d] the ruling of the Commission that, having

secured selective employment without assistance from the employer, Hamilton is entitled to

compensation for total loss of earnings during his period of temporary unemployment.” Id.

(emphasis added). In Hamilton, the “employer argue[d] that the burden of proof was on

Hamilton to show that he had suffered a change in condition directly caused by his industrial

                                                - 28 -
accident.” Id. at 381, 322 S.E.2d at 840-41. The claimant had found light-duty employment

with another employer but subsequently had been fired because of a dispute with that employer.

Id. at 380, 322 S.E.2d at 839. Nonetheless, the Court held that because employer was not

providing claimant with a light-duty job, it was required to pay compensation when claimant was

unemployed. Id. at 382, 322 S.E.2d at 841. I simply see no principled reason why a claimant

fired from a light-duty job for reasons other than his disability, as in Hamilton, is entitled to

compensation, but an employee laid off from the light-duty job provided by her employer, as

here, is not entitled to compensation.

       More recently, the Supreme Court reaffirmed its prior understanding of the holdings in

Agee and Barbour.

               See Pocahontas Fuel Co. v. Agee, 201 Va. 678, 681, 112 S.E.2d
               835, 838 (1960) (employee was not entitled to benefits because he
               “never applied for work elsewhere either before or after he learned
               that he had silicosis, and there [was] no proof that he could not
               have marketed his remaining capacity for work”); Pocahontas Fuel
               Co. v. Barbour, 201 Va. 682, 684, 112 S.E.2d 904, 906 (1960)
               (reversing Commission's award of benefits because there was no
               proof either that the employee made “a reasonable effort to procure
               work” or that he was unable to market his residual capacity[.]

Favinger, 275 Va. at 91, 654 S.E.2d at 579-80 (first alteration in original). The Supreme Court

has consistently required the claimant to prove a reasonable effort to market residual work

capacity, not to prove why her reasonable efforts were unsuccessful.

       “The determination as to whether an employee seeking temporary partial disability

benefits has made a reasonable effort to market his residual work capacity falls within the

Commission’s fact-finding, and if the Commission’s factual conclusion on that question is

supported by credible evidence, it will not be disturbed on appeal.” Id. at 88, 654 S.E.2d at 578.

The Supreme Court reasoned in Favinger that “[t]here are no fixed guidelines for determining

what constitutes a ‘reasonable effort’ by an employee to market residual work capacity.” Id. at

                                                - 29 -
89, 654 S.E.2d at 579. The Court gave several criteria for evaluating whether the employee

“exercise[d] reasonable diligence” in searching for employment:

               “(1) the nature and extent of [the] employee’s disability; (2) the
               employee’s training, age, experience, and education; (3) the nature
               and extent of [the] employee’s job search; (4) the employee’s
               intent in conducting his job search; (5) the availability of jobs in
               the area suitable for the employee, considering his disability; and
               (6) any other matter affecting [the] employee’s capacity to find
               suitable employment.”

Id. at 90, 654 S.E.2d at 579 (alterations in original) (quoting Nat’l Linen Serv. v. McGuinn, 8

Va. App. 267, 272, 380 S.E.2d 31, 34 (1989)). “In sum, an employee ‘must present “some

evidence that he [has] engaged in a good faith effort to obtain work within the tolerance of his

physical condition” and has failed to find a job, either due to his injury or because no such work

was available in the community.’” Id. (alteration in original, emphasis added) (quoting Nat’l

Linen Serv., 8 Va. App. at 271, 380 S.E.2d at 34).

       Here, the employer terminated Jones’s light-duty position. The employer could have

offered Jones a different light-duty position and thereby meet its compensation obligation. It

chose not to do so. It was consequently obligated to pay Jones for her partial disability. Jones

was required only to seek “employment suitable to [her] capacity.” Code § 65.2-510(A); see

Dowden v. Hercules, Inc., 51 Va. App. 185, 199, 655 S.E.2d 755, 762 (2008) (en banc) (Kelsey,

J., concurring) (“A mechanic with a hand injury, therefore, does not breach his mitigation duty

by refusing a job that requires full use of both hands. . . . The surgeon’s job is not ‘suitable’ for a

mechanic, and thus, Code § 65.2-510(A) would place no duty on the mechanic to take a job he

obviously cannot perform.”). The Commission found as fact that Jones did exactly that—she




                                                - 30 -
adequately marketed her residual work capacity, but no work was available for her in the

community.24 By law, she was thus entitled to benefits.

       Nevertheless, the majority augments the criteria given by the Supreme Court in Favinger

with a new requirement—that Jones prove that the reason she cannot successfully market her

residual work capacity is because she is partially disabled. Never before has such a heavy

burden been placed on injured workers; and it is a burden wholly inconsistent with the General

Assembly’s statutory framework and this Court’s prior precedent.

                                           CONCLUSION

       Code § 65.2-502 requires that an employer compensate a partially disabled employee for

her “incapacity for work resulting from the injury.” Nevertheless, the majority today overrules

the prior opinions from this Court that “evaluated partial disability claims using a loss of earning

capacity analysis.”25 The majority does so because it concludes such analysis “eliminate[s] the


       24
           The majority maintains that “nothing in [its] opinion today requires any changes in the
way partially disabled claimants market their residual capacity.” In light of the Commission’s
factual finding, the only conclusion I can draw is that the majority has imposed an additional
burden of proof on the claimant that the Commission failed to consider.
       25
           I note that having overruled this Court’s prior opinions that dealt specifically with
laid-off light-duty employees, the majority adopts and applies Utility Trailer, which by the
majority’s own admission “addresses only those cases where a partially incapacitated employee
is furloughed.” See Carr v. Atkinson/Clark/Shea, A Joint Venture, 63 Va. App. 281, 286, 756
S.E.2d 191, 193 (2014) (rejecting the narrow exception in Utility Trailer, which “by its plain
terms represents a decision that is ‘limited in scope’ and ‘addresses only those cases where a
partially incapacitated employee is furloughed’” and instead applying the general rule that when
furloughs are “attributable to the ‘vicissitudes of the market place,’” Lamb, 33 Va. App. at 197,
532 S.E.2d at 341, “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,” Graham, 25 Va. App. at 137, 486 S.E.2d at 578). Significantly, the Supreme
Court’s only reference to Utility Trailer is its observation in McKellar that Utility Trailer’s
“narrow focus” made it applicable to partially disabled, furloughed employees only and that this
Court had improperly relied upon it. McKellar, 290 Va. at 358, 777 S.E.2d at 862. The majority
expands Utility Trailer’s “narrow focus” by redefining a furlough to include permanent layoffs.
Frankly, I am at a loss to understand how the County’s decision to permanently outsource
Jones’s job could possibly be considered a furlough. The plain meaning of the term “furlough”
connotes a temporary absence. See Furlough, Black’s Law Dictionary (10th ed. 2014) (defining
                                                 - 31 -
requirement that a claimant demonstrate that partial disability caused an economic loss, place[s]

a partially disabled claimant in a superior position to the able-bodied workers who also were laid

off, and essentially convert[s] workers’ compensation benefits into unemployment benefits,

which we cannot do,” citing Vega Precision Labs., Inc. v. Jwayyed, 218 Va. 1026, 1032, 243

S.E.2d 228, 231 (1978).26 The majority’s reasoning seems to be driven by these concerns rather

than an analysis of the actual statute to discern the intent of the legislature.27 I believe that the

                public policy of the Commonwealth is determined by the General
                Assembly, for “it is the responsibility of the legislature, not the
                judiciary, . . . to strike the appropriate balance between competing
                interests. . . . Once the legislature has acted, the role of the
                judiciary is the narrow one of determining what [it] meant by the
                words it used in the statute.”

Uniwest Constr. v. Amtech Elevator Servs., 280 Va. 428, 440-41, 699 S.E.2d 223, 229 (2010)

(alterations in original) (quoting Dionne v. Se. Foam Converting & Packaging, Inc., 240 Va. 297,

304, 397 S.E.2d 110, 114 (1990)). “This principle is a valuable guard against unwarranted

judicial activism. It is by no means new and is deeply embedded in our jurisprudence.”

Harward v. Commonwealth, 229 Va. 363, 368, 330 S.E.2d 89, 92 (1985) (Russell, J., dissenting).




“furlough” as “1. A leave of absence from military or other employment duty. 2. A brief release
from prison.”). I am sure the warden who released an inmate for a Christmas furlough would be
quite surprised to learn he shouldn’t expect the inmate’s return after the holiday.
        26
           I agree with the majority that workers’ compensation is not a substitute for
unemployment insurance and is not available when, as in Jwayyed, the claimant is “found
medically fit to return to his pre-injury employment” but that job is no longer available.
Jwayyed, 218 Va. at 1032, 243 S.E.2d at 231. Certainly, if an employee is no longer disabled, he
is no longer entitled to compensation under the Act. But that is not the case here; Jones is still
partially disabled and Code § 65.2-502 requires that she be compensated under the Act during
the period of incapacity.
        27
          See supra at 13 (adopting reasoning to avoid “impermissible and anomalous results”);
supra at 13 (seeking to avoid “anomalous results” that would “place injured employees in
superior position to their able-bodied colleagues”); supra at 17 (concluding “a partially disabled
claimant bears the burden of establishing a causal link between a claimed economic loss and the
work-related injury”).
                                               - 32 -
       I believe the legislature’s clear policy choice is to compensate an employee for

“incapacity for work resulting from [a compensable] injury . . . during such incapacity.” Code

§ 65.2-502. The General Assembly balanced the rights and remedies granted to an employee

under the Act with the fact that the Act excludes all other rights and remedies an employee might

have. Code § 65.2-307; David White Crane Serv. v. Howell, 282 Va. 323, 327, 714 S.E.2d 572,

575 (2011). The General Assembly carefully weighed competing interests and struck the

appropriate balance between employers, employees, and society-at-large. Even if application of

Code § 65.2-502’s plain language were to put “a partially disabled claimant in a superior position

to the able-bodied workers who also were laid off,” as the majority fears, such an outcome is for

the General Assembly to balance against other competing interests. I would leave

determinations of what is “impermissible and anomalous” to the legislature.

       Jones indisputably suffered an “incapacity for work resulting from [her] injury,” for

which she was entitled to compensation “during such incapacity,” upon the Commission’s

finding of fact that she had reasonably marketed her residual work capacity. Jones has done

everything the Act requires; she is entitled to compensation. And I am additionally reminded

that “should doubt remain [as to her right to compensation], [Jones] is entitled to the benefit of

the doubt. The provisions of the Workers’ Compensation Act ‘should be liberally construed to

carry out [its] humane and beneficial purposes.’” Dinwiddie Cty Sch. Bd. v. Cole, 258 Va. 430,

436-37, 520 S.E.2d 650, 653 (1999) (last alteration in original) (quoting Baggett Transp. Co. v.

Dillon, 219 Va. 633, 637, 248 S.E.2d 819, 822 (1978)). I would affirm the Commission’s award.




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