                        COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Annunziata and Agee
Argued at Alexandria, Virginia


POWER AND ALARM COMMUNICATIONS SYSTEM and
 MONTGOMERY MUTUAL INSURANCE COMPANY
                                            MEMORANDUM OPINION * BY
v.   Record No. 2783-00-4          CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                 JUNE 19, 2001
MICHAEL D. BYERLY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             James Richard Ryan, Jr. (Pamela A. Kultgen;
             Siciliano, Ellis, Dyer & Boccarosse, on
             briefs), for appellants.

             William A. Musto (Koonz, McKenney, Johnson,
             DePaolis & Lightfoot, on brief), for
             appellee.


     Power and Alarm Communications System and its insurer

("employer") contend that the Workers' Compensation Commission

("commission") erred in awarding temporary partial disability

benefits to Michael D. Byerly ("claimant"). 1    Finding no error,

we affirm.

                                  I.

     At the time of the accident, claimant had been employed as

an electrician service truck driver for approximately two years.


     * Pursuant to Code § 17.1-413 this opinion is not
designated for publication.
     1
        Employer states in its question presented that claimant's
temporary total disability claim was at issue. However, the
commission found that the employer did not appeal this
determination of the deputy commissioner.
At hearing, the parties stipulated that claimant: (1) had a

pre-injury average weekly wage of $1381.78; (2) sustained a

compensable workers' compensation injury on or about March 30,

1999; (3) injured his neck, lower back and right shoulder in the

accident; and (4) had an initial period of total disability from

March 31 through July 6, 1999.

     Claimant filed a claim for temporary total benefits for the

period March 30 through July 20, 1999 and temporary partial

benefits for the period July 21, 1999 to the present and

continuing.   Employer defended the claim on the ground that

claimant was able to return to full-duty work on August 5, 1999

based on a medical evaluation by Dr. David Dorin or, in the

alternative, claimant failed to market his residual capacity

and, therefore, was not entitled to temporary partial benefits.

The deputy commissioner found claimant totally disabled from

March 30 through July 20, 1999 and awarded benefits.   He also

determined that after that date, claimant was capable of

light-duty work and that claimant failed to establish lost

earnings as a result of his light-duty restrictions.   On appeal,

the full commission found (1) there was no evidence claimant was

fully able to perform the duties of his pre-injury employment,

and (2) his earnings were less than his pre-injury wage. 2   The




     2
        They also found claimant failed to market his residual
capacity for the period July 21 through August 27, 1999.

                                 - 2 -
commission opined "While Dr. Tham [claimant's treating

physician] has not restricted the claimant's work hours, he has

restricted his work capacity.   We are not persuaded that

employer is relieved of its duty to compensate the claimant who

remains partially disabled."    Employer appeals the commission's

decision to award temporary partial disability benefits. 3

                                 II.

     Employer first contends no credible evidence supports

commission's finding that claimant was unable to return to his

pre-injury employment.

     "On appeal, we view the evidence in the light most

favorable to the claimant, who prevailed before the commission."

Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d

335, 340 (1998) (citations omitted).    "A question raised by

conflicting medical opinion is a question of fact."    WLR Foods

v. Cardosa, 26 Va. App. 220, 230, 494 S.E.2d 147, 152 (1997).

"'Decisions of the commission as to questions of fact, if

supported by credible evidence, are conclusive and binding on

this Court.'"   Id. (quoting Manassas Ice & Fuel Co. v. Farrar,


     3
         Code § 65.2-502 provides in pertinent part:

           when the incapacity for work resulting from
           the injury is partial, the employer shall
           pay . . . 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 . . . .


                                - 3 -
13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991)).   "'The fact

that there is contrary evidence in the record is of no

consequence.'"    Id. (quoting Wagner Enters., Inc. v. Brooks, 12

Va. App. 890, 894, 407 S.E.2d 32, 35 (1991)).

     On July 19, 1999, Dr. William Tham, claimant's treating

physician, provided a doctor's certificate stating that claimant

could return to work light duty on July 21, 1999.    Dr. Tham

stated "[r]estrict work on ladders or scaffolds – no lifting >

25 lbs."   In his report of November 4, 1999, Dr. Tham increased

the amount of weight claimant could lift to 40 lbs. and

restricted pulling motions.   In his response to a questionnaire

prepared by claimant's counsel, Dr. Tham stated claimant could

return to work "regular hours" but continued his light-duty

restrictions.

     While claimant worked in a supervisory position both before

and after his injuries, claimant testified that his injury and

its residual effects had curtailed his job activities.

Pre-injury, he was able to manipulate a 500-lb. spool of wire

and work constantly on scaffolds and ladders.   His new position

with Consolidated Engineering Services (CES) was also

supervisory in nature but he could not "lift, hoist, or move

ladders as he did before his injury."   He also tried to work a

40-hour week but averaged 24 to 32 hours due to medical

appointments.    Employer presented no evidence to contradict



                                - 4 -
claimant's description of the nature of his pre-injury and

post-injury jobs.

        "The threshold test for compensability is whether the

employee is 'able to fully perform the duties of his

pre[-]injury employment.'"     Celanese Fibers Co. 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)).

"[An] 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."     Carr v. Virginia Elec. & Power Co., 25 Va.

App. 306, 311-12, 487 S.E.2d 878, 881 (1997).

        Credible evidence supports the commission's finding that

claimant had continuing physical limitations as a result of his

injury and was unable to return to his pre-injury position.

                                 III.

        Employer next contends that claimant "self-limited" his

hours and refused to work overtime, thus, causing his own wage

loss.    Employer argues that because there was no medical

limitation on claimant's hours, he could recoup any salary

differential through overtime.    Employer concedes that no

evidence in the record established overtime was available.      The

unrebutted evidence is claimant's pre-injury base rate wage not

including overtime was $21.96 per hour.    His base rate wage not

including overtime post-injury with employer was $18.30 per

                                 - 5 -
hour.    His base rate wage with Kelly Electrical Services and CES

was $17.55 per hour without overtime.    Claimant has not earned

his pre-injury average weekly wage since the date of injury.

Employer also argues that by limiting his work hours due to

"flare-ups" and failing to work overtime, claimant limited his

wages.    We disagree.

        Employer contends that the rationale of Carr does not apply

to the instant case because the record there affirmatively

proved that no overtime was available to the employee in his

light-duty capacity.     Here, the record was silent as to the

availability of overtime.    We find this argument to be without

merit.

        We hold claimant is entitled to temporary partial

disability benefits regardless of the availability of overtime

because claimant was not released to work in his pre-injury

position and his post-injury earnings did not equal or exceed

his pre-injury income.    For the foregoing reasons, the decision

of the commission is affirmed.

                                                            Affirmed.




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