                     COURT OF APPEALS OF VIRGINIA

Present: Judges Fitzpatrick, Overton and Senior Judge Duff
Argued at Alexandria, Virginia

DENNIS L. CARR
                                               OPINION BY
v.      Record No. 2939-96-4          JUDGE JOHANNA L. FITZPATRICK
                                             JULY 29, 1997
VIRGINIA ELECTRIC & POWER COMPANY


       FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            Wesley G. Marshall (Peter M. Sweeny &
            Associates, P.C., on briefs), for appellant.
            Glenn S. Phelps (Ruth Nathanson; Midkiff &
            Hiner, P.C., on brief), for appellee.



     Dennis L. Carr (claimant) appeals a decision of the Workers'

Compensation Commission denying him an award of temporary partial

disability benefits.    He contends that the commission erred in

failing to award him benefits for the time periods during which

he performed light duty work but received no opportunities for

overtime.   For the reasons that follow, we reverse the decision

of the commission.

                            I.   BACKGROUND

     Claimant was employed with Virginia Power (employer) as a

lineman for approximately twenty-three years.       During his

employment as a lineman, claimant's duties included "climb[ing]

poles," "work[ing] out of a bucket truck," trouble shooting,

building lines, and "restor[ing] service customers when they're

out of lights."   Claimant typically worked more than forty hours

per week and regularly received overtime compensation.

Additionally, claimant received bonus or incentive pay when he
"filled other shifts" or worked "outside of his department of

geographic area."   On July 5, 1995, claimant, who is left-handed,

suffered a compensable injury resulting in the amputation of his

left ring finger.

     Subsequently, claimant was paid wages in lieu of

compensation for periods of total incapacitation from July 6,

1995 through August 5, 1995, and from September 26, 1995 through

October 15, 1995.   Claimant performed light duty work from August

6, 1995 through September 25, 1995, and from October 16, 1995 and

continuing.   Claimant testified that he returned only to light

duty work "[b]ecause my doctor says I can't do line work

anymore."   A letter from one of claimant's doctors states that

claimant's injury "precludes him from performing all of his

regular duties as an electrician."   Claimant's light duty work

included the following responsibilities:    "some inspection work

on [the] equipment, visual, just visual inspections, and . . .

read[ing] some meters from time to time."   During the light duty

work, claimant worked "eight hours a day, 40-hour week."      He

received, during his light duty work, approximately $114.16 less
                                                    1
per week than he received at his pre-injury work.       However,

during his light duty work, he was neither offered overtime work,

nor paid additional wages; nor did he receive any "shift

differential."
     1
      The commission calculated claimant's pre-injury average
weekly wage to be $1,055.37. This amount is $114.16 more per
week than claimant's weekly wage for his light duty work.



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     At the hearing on April 12, 1996 before the deputy

commissioner, claimant admitted that he sometimes declined or was

unavailable to work overtime, that he had been disciplined for

having low acceptance rates for overtime, and that he did not

know exactly how much overtime he would have been offered.

Finally, claimant testified that he knew that overtime had been

offered to other linemen during the time period in question, and

stated that he would have accepted such an opportunity if it had

been offered.
     David H. Driggs (Driggs), the construction superintendent,

testified that there was no way to predict how much overtime

would be available to any given employee from year to year, and

that, in the past, claimant failed to maintain the amount of

overtime required by the company.   However, Driggs also testified

that, during the past ten years, overtime had always been offered

to linemen.

     Following the hearing, the deputy commissioner denied

claimant's request for temporary partial disability benefits for

the wage loss allegedly resulting from his lack of overtime work,

and found that "the reduction in earnings stems from purely

economic factors unrelated to the accident.   Therefore, the

claimant has failed to prove a causal nexus between the accident

and his loss of earnings."

     On November 4, 1996, the full commission reviewed the record

and found that "the claimant was not medically restricted from




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working overtime and had not proven that his wage loss was due to

medical restrictions from the industrial accident."    The

commission made no finding or classification as to the job title

of claimant's light duty position relative to his pre-injury

title of lineman.   Accordingly, the commission affirmed the

decision of the deputy commissioner that denied claimant

temporary partial benefits for wages lost due to a lack of

overtime work or shift differential.
                          II.   WAGE LOSS

     Claimant contends that because he was offered light duty

work without the opportunity to work overtime, shift

differential, or out-of-business-area pay, he suffered a wage

loss below his pre-injury wage.   Additionally, claimant argues

that his wage loss is properly attributable to his occupational

injury, as medically imposed restrictions prevented him from

performing his pre-injury job and receiving extra earnings, and

it is therefore compensable under Code § 65.2-502. 2
     2
      Code § 65.2-502, Compensation for partial incapacity,
provides as follows:

               Except as otherwise provided in
          § 65.2-503 or § 65.2-510, when 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. In no case shall



                                  4
     We recently addressed the issue of the impact of economic or

business conditions on a partially disabled claimant's right to

compensation.   See Consolidated Stores Corporation, et al. v.

Graham, ___ Va. App. ___, ___ S.E.2d ___ (1997).   In that case,

some time after her injury, claimant was authorized to perform

light duty work.   She was offered and she accepted a position as

a sales clerk in which she made the same hourly wage as her pre-

injury position as a "stocker."   However, "[d]ue to economic

conditions, [employer] assigned [claimant] a reduced number of

hours, resulting in an average weekly wage of less than $108."
Consolidated, ___ Va. App. at ___, ___ S.E.2d at ___.     Although

the deputy commissioner found that "any diminution in hours

worked was a product of the down turn in business," the full

commission reversed and found that the claimant had not been

"released to her pre-injury job and that she was not performing

all her pre-injury duties" and that the "'fact that the

availability of light duty work is limited due to economic

conditions does not diminish the claimant's right to compensation

when the injury prevents her from performing her regular job.'"
Id. at ___, ___ S.E.2d at ___.

     Finding that claimant was not released to her pre-injury


          the period covered by such compensation be
          greater than 500 weeks. In case the partial
          incapacity begins after a period of total
          incapacity, the latter period shall be
          deducted from the maximum period herein
          allowed for partial incapacity.




                                  5
employment and that her light duty responsibilities as a store

clerk were not commensurate with her pre-injury position of a

stocker, we held that "the employer's financial condition and the

availability of alternative work do not affect the claimant's

right to compensation due to an impaired capacity to perform his

pre-injury duties."    Id. at ___, ___ S.E.2d at ___ (emphasis

added).    In reaching this decision, we relied on Code § 65.2-502:
                 During a period of partial incapacity, a
            claimant performing work remains entitled to
            compensation benefits, determined in part by
            calculating the difference between the
            claimant's average weekly wage before and
            after the injury. Thus, by providing
            suitable alternative employment to a
            claimant, an employer may avoid paying
            compensation benefits.

Id.   Accordingly, we held that because claimant was neither

released to return to her pre-injury duties, nor restored to her

pre-injury capacity by the employer's offered alternative light

duty work, the employer remained liable to fulfill its duty to

compensate claimant.

      The circumstances in Consolidated are remarkably similar to
those of the instant case.   Here, employer offered claimant light

duty work similar in pay to his pre-injury employment as a

lineman.   As in Consolidated, however, claimant suffered a wage

loss at the light duty position that he would not have incurred

at his pre-injury placement.   "The threshold test for

compensability is whether the employee is 'able fully to perform

the duties of his pre[-]injury employment.'"    Celanese Fibers Co.




                                  6
v. Johnson, 229 Va. 117, 120, 326 S.E.2d 687, 690 (1985) (quoting

Sky Chefs, Inc. v. Rogers, 222 Va. 800, 805, 284 S.E.2d 605, 607

(1981)).   Under the holding in Consolidated, the employer is

relieved of its duty to compensate the claimant only if it offers

the claimant employment in his or her "pre-injury capacity" and

the claimant has been released to perform the work.      In both

Consolidated and this case, the employer failed to make this

offer.   Claimant, who made at least some overtime in his previous

position, now makes none.   The evidence demonstrated that other

linemen continue to receive overtime and that claimant's range of

duties in his light duty work is not equivalent to his pre-injury

duties as a lineman.   Thus, claimant has not been released to his

pre-injury capacity as a lineman.      Accordingly, employer's

inability to predict the available overtime to the linemen during

the period in question does not diminish claimant's right to

compensation, as his work-related injury prevents him from

performing lineman duties, and employer remains liable for the

wage loss suffered by claimant.       See also Davey Tree Expert

Service Co. v. Acuff, 20 Va. App. 320, 456 S.E.2d 544 (1995)

(holding that claimant is entitled to temporary partial

disability benefits to compensate him for the loss of his

capability to engage in his pre-injury work, where this loss is

caused by work-related injury).

     For the foregoing reasons, the decision of the commission is

reversed and the case remanded for the commission to enter an




                                  7
order consistent with this opinion.

                                      Reversed and remanded.




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