Court of Appeals Reverses Itself in Hively: Claimant Not Entitled to Any TPD under Favinger
I wrote to you earlier this year (“Seven Cases Worth Knowing About”) regarding the case of Ross & Sons Utility v. Hively, an unpublished opinion in which the Court of Appeals found that the claimant had not marketed the extra hours his regular employment involved, but instead of holding that the claimant was not entitled to any temporary partial disability benefits under the Supreme Court decision in Ford Motor Co. v. Favinger, the Court of Appeals remanded the case to the Commission to calculate how much in compensation the claimant was entitled to under the circumstances. The employer requested that the panel of the Court of Appeals reconsider, and it did, reversing itself as to the remedy only and affirming the principle in Favinger that if a claimant fails to fully market his wages or his hours, he is not entitled to any compensation benefits during the period of refusal. This is a welcome sign that the Court of Appeals still recognizes what Favinger means, although it may have to be reminded from time to time.
Commission’s Advice to Adjusters at VSIA Conference
At the Virginia Self-Insured Association conference recently, Commissioner Williams gave some advice to workers’ compensation claims adjusters that bears your consideration:
Seven Recent Decisions Worth Knowing
Several decisions have come down from the Commission and the Court of Appeals that are probably worthwhile for claims adjusters and risk management personnel to know about. The marketing issue has received a lot of attention with favorable decisions by the Supreme Court in Ford Motor Co. v. Favinger and the Court of Appeals applying Favinger in cases our firm handled: Smith v. James City County and CVS v. Plunkett. Two decisions from the Court of Appeals in March of 2011, however, one upholding the Favinger line of cases and one diverging from that decision, are worth noting. In Chaney v. Honeywell, the Court of Appeals found that the facts of that case were virtually identical to Favinger where the claimant worked a 40-hour light duty job but not his regular overtime hours and failed to market the shortfall in hours and thus, was not entitled to any compensation. A few weeks later, the Court of Appeals decided Ross & Sons Utility v. Hively, where the claimant normally worked 45-50 hours a week but found light duty on his own at 34 hours a week at a lower hourly rate as well. He did not market to find additional work or hours elsewhere. The Court relied on Favinger, but in a strange twist, instead of denying the claim for compensation outright, it fashioned a new remedy by remanding the case back to the Commission for calculation of the claimant’s TPD benefits based on the difference between claimant’s post-injury average weekly wage and what his pre-injury average weekly wage would have been had he only worked 34 hours per week. This remedy does not appear consistent with Favinger or the other published Court of Appeals decisions on marketing, so its impact remains to be seen.
Market Value
You may recall that Whitt & Del Bueno has had a number of cases over the past couple of years or so involving the issue of marketing by a partially disabled claimant seeking either temporary total or temporary partial disability benefits. Our firm was recently involved in yet another case involving this marketing issue.
Certifiable
You may recall a news blurb our firm sent out some months ago about the issue of the Commission’s certification of previously entered awards for potential use by injured employees to enforce their award in circuit court when employers and carriers fail to pay compensation benefits after properly filing with the Commission an employer’s application for hearing to suspend or terminate the outstanding award. This enewsletter provides an update about a case our firm had involving this issue.