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Carr v. Atkinson/Clark/Shea

Court of Appeals of Virginia

April 8, 2014

CARNIE CARR, JR.
v.
ATKINSON/CLARK/SHEA, A JOINT VENTURE, AND ST. PAUL FIRE AND MARINE INSURANCE COMPANY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.

M. Thomas McWeeny (Julie H. Heiden; Koonz, McKenney, Johnson, DePaolis & Lightfoot, L.L.P., on brief), for appellant.

Alan D. Sundburg (Friedlander Misler, PLLC, on brief), for appellees.

Present: Felton Chief Judge, Petty and McCullough Judges.

OPINION

Page 192

[63 Va.App. 283] STEPHEN R. McCULLOUGH, JUDGE.

Carnie Carr, Jr., assigns error to the ruling of the commission denying him benefits during repeated furloughs of undefined duration. We agree and reverse.

BACKGROUND

Appellant has been restricted to light duty following a work-related accident. Due to the vagaries of the construction industry, his employer periodically furloughs nearly all of its employees for undefined periods of time, with the expectation that the employees will be hired anew once additional contracts are signed and permits are obtained. During these recurring furloughs, only the superintendent, the assistant superintendent, and the union steward remain on the payroll. Some of the furloughs are short, lasting one or two days. Others can last more than three weeks. Ordinarily, the employer will indicate to the employees the anticipated duration of the furlough. The employer would indicate, for example, that the furlough would " probably be a week or two" or " it might be a week, might be a couple days, might be a couple weeks." Appellant sought compensation benefits for these undefined furlough periods.

The deputy commissioner concluded that appellant was not entitled to benefits. The commission, interpreting our decision in Utility Trailer Mfg. Co. v. Testerman, 58 Va.App. 474, 711 S.E.2d 232 (2011), affirmed.

ANALYSIS

The issue before us is a question of law, which we review de novo . Ratliff v. Carter Mach. Co., 39 Va.App. 586, 589, 575 S.E.2d 571, 573 (2003).

Code § 65.2-502(A) provides in relevant part that

[63 Va.App. 284] [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 ...

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