756 S.E.2d 191
Va. Ct. App.2014Background
- Carr was partially disabled after a work injury and assigned to light (selective) duty by his employer.
- The employer periodically furloughed nearly all employees for undefined periods due to variable construction contracts; a few short furloughs lasted days, others over three weeks.
- Employer sometimes estimated duration (e.g., “probably a week or two”) but furloughs were not pre-planned recurring events like an annual shutdown.
- During furloughs only key supervisory/union personnel remained on payroll; Carr sought workers’ compensation benefits for lost wages during these furloughs.
- The deputy commissioner denied benefits; the Virginia Workers’ Compensation Commission affirmed, relying on Utility Trailer Mfg. Co. v. Testerman.
- The Court of Appeals reviewed legal questions de novo and evaluated whether wage loss during undefined recurring furloughs is causally related to the injury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a partially disabled employee on selective duty is entitled to benefits during recurring furloughs of undefined duration | Carr: furloughs caused wage loss tied to his partial incapacity and therefore he should receive benefits | Employer: furloughs are economic/market events akin to non-injury layoffs and preclude benefits under Utility Trailer | Court: Employee entitled to benefits here because furloughs were recurring, undefined, market-driven, and disadvantaged the restricted worker in finding alternatives; causal connection established |
| Whether Utility Trailer controls when furloughs are routine/defined versus undefined/recurring | Carr: Utility Trailer limited to defined or pre-planned furloughs and does not bar benefits here | Employer: Utility Trailer bars benefits for furloughed selective-duty employees | Court: Utility Trailer is limited; its factors don’t preclude benefits for recurring, undefined furloughs tied to marketplace vicissitudes |
| Whether the employee must show efforts to market remaining capacity | Carr: did so or should be required to make reasonable efforts | Employer: may argue failure to market negates benefits | Court: Employee must show reasonable marketing efforts; such efforts judged by total facts and circumstances (Ford standard) |
| Whether statutory and precedential protections shield partially disabled workers from market downturns | Carr: Workers’ Comp Act and cases (Graham, Metro Machine) protect such employees from economic vicissitudes | Employer: selective employment can eliminate liability (Big D) or Utility Trailer limits recovery | Court: Reinforced precedents protecting partially disabled workers from market downturns unless facts show otherwise; selective employment does not defeat compensation where causal link exists |
Key Cases Cited
- Utility Trailer Mfg. Co. v. Testerman, 58 Va.App. 474, 711 S.E.2d 232 (Va. Ct. App. 2011) (established factors for furlough cases; limited to defined/plant-wide shutdowns)
- Consolidated Stores Corp. v. Graham, 25 Va.App. 133, 486 S.E.2d 576 (Va. Ct. App. 1997) (employer’s financial condition does not eliminate compensation when employee remains partially incapacitated)
- Metro Mach. Corp. v. Lamb, 33 Va.App. 187, 532 S.E.2d 337 (Va. Ct. App. 2000) (employee on selective duty remains entitled to benefits after economic layoff until released to pre-injury work or offered other suitable work)
- Big D Quality Homebuilders v. Hamilton, 228 Va. 378, 322 S.E.2d 839 (Va. 1984) (employer may avoid paying benefits by providing suitable selective employment)
- Ford Motor Co. v. Favinger, 275 Va. 83, 654 S.E.2d 575 (Va. 2008) (employee must make reasonable efforts to market remaining capacity; reasonableness judged by all circumstances)
- Baggett Transp. Co. v. Dillon, 219 Va. 633, 248 S.E.2d 819 (Va. 1978) (Workers’ Compensation Act to be liberally construed to effect its humane purposes)