REHEARING EN BANC
THE VIRGINIA WORKERS' COMPENSATION COMMISSION
David Griffin (John D. Hasselberger; Winchester Law Group,
P.C., on briefs), for appellants.
L. Flax (Robert L. Flax, P.C., on brief), for appellee.
Curiae: Virginia Trial Lawyers Association (Kathleen Grace
Walsh; Gregory O. Harbison; Law Office of Kathleen Grace
Walsh; Harbison & Kavanagh, PLLC, on brief), for
Present: Chief Judge Huff, Judges Humphreys, Petty, Beales,
Alston, Chafin, Decker, O'Brien, Russell, AtLee and
Malveaux Argued at Richmond, Virginia
G. RUSSELL, JR. JUDGE
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). The panel, however, reversed the award of
disability benefits, holding 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.
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). We granted
rehearing en banc to resolve the conflict.
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.
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.
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.
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 providing
custodial services for employer, one of employer's former
custodians was hired by Jani-King. Claimant never sought a
position with Jani-King.
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.
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.
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.
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.
Standard of Review
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
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).
Partial Versus Total Disability
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
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
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.
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
Entitlement to Benefits in the Face of Layoffs and Furloughs
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.
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, Larson's Workers'
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
Metro Machine Cases
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
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
Utility Trailer and Carr
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 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.
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.
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. Cf. Pocahontas Fuel Co. v.
Agee, 201 Va. 678, 681, 112 S.E.2d 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)).
Resolving the Inconsistency
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.
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