Consolidated Stores, et al. v Sandra C. Graham

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judges Coleman and Willis
Argued at Salem, Virginia
CONSOLIDATED STORES CORPORATION and
LUMBERMENS MUTUAL CASUALTY COMPANY OPINION BY
v. 	Record No. 2897-96-3 	JUDGE JERE M. H. WILLIS, JR.
JUNE 24, 1997
SANDRA C. GRAHAM
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Monica L. Taylor (Thomas H. Miller; Gentry,
Locke, Rakes & Moore, on brief), for
appellants.
Carr L. Kinder, Jr. (Kinder & Fogel, P.C., on
brief), for appellee.
Consolidated Stores Corporation and Lumbermens Mutual
Casualty Company (Consolidated) appeal the decision of the
Workers' Compensation Commission reinstating an award of
compensation benefits to Sandra C. Graham. 	Consolidated contends
that the commission erred in finding that Ms. Graham's wage loss
was attributable to her work injury, rather than to economic
conditions at the workplace. 	We affirm the award of the
commission.
On appeal, we view the evidence in the light most favorable
to the party prevailing below. 	Crisp v. Brown's Tysons Corner
Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986).
The findings of the commission are conclusive and binding if
supported by credible evidence. 	Morris v. Badger Powhatan/Figgie
Int'l Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986).

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Ms. Graham injured her arm in a job-related accident. 	At
the time of her injury, she was a part-time stocker, working four
hours per day, six days per week. 	Her average weekly wage was
$108. 	She received temporary total disability benefits from
January 20, 1994 through January 9, 1996.
On October 16, 1995, Dr. Brian Torre, Ms. Graham's treating
physician, authorized her to perform light duty work.
Subsequently, Dr. Torre approved Ms. Graham for a light duty
position as a part-time sales clerk. 	On December 27, 1995,
Consolidated offered Ms. Graham a part-time sales clerk position
at her previous hourly wage. 	Ms. Graham accepted the job and
began work on January 10, 1996. 	Due to economic conditions,
Consolidated assigned Ms. Graham a reduced number of hours,
resulting in an average weekly wage of less than $108.
Citing her return to light duty work at her pre-injury
hourly wage, Consolidated filed an application with the
commission seeking a suspension of Ms. Graham's benefits. 	The
deputy commissioner terminated Ms. Graham's award. 	He found that
Consolidated had proven that Ms. Graham "was released to her
pre-injury employment and that any diminution in hours worked was
a product of the down turn in business rather than an inability
to perform the work activities."
On review, the full commission reversed the deputy
commissioner's decision. 	The commission found that Ms. Graham
had not been released to her pre-injury job and that she was not

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performing all of her pre-injury duties. 	Accordingly, it held
that "[t]he fact that the availability of light duty work is
limited due to economic conditions does not diminish the
claimant's right to compensation when the injury prevents her
from performing her regular job." 	The commission awarded Ms.
Graham temporary partial disability compensation benefits of
$53.07 per week.
Consolidated contends that the decline in Ms. Graham's
average weekly wage upon her return to work resulted from poor
economic conditions, not from her work injury. 	Consolidated
argues that although Ms. Graham was not re-employed as a stocker,
she received an equivalent position providing her with the same
part-time status and hourly wage that she had enjoyed prior to
her injury. 	We find that credible evidence supports the
commission's decision.
"The threshold test for compensability is whether the
employee is 'able fully to perform the duties of his preinjury
employment.'" 	Celanese Fibers 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)). 	Prior to her injury,
Ms. Graham was a stocker. 	In January, 1996, Consolidated rehired
her as a cashier/store clerk. 	Despite voluminous medical
evidence detailing a general lack of objective support for her
subjective complaints, none of her medical doctors released her
to work as a stocker. 	Her assigned duties as a "store clerk" are

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not commensurate with those of a stocker.1
During a period of partial incapacity, a claimant performing
work remains entitled to compensation benefits, determined in
part by calculating the difference between the claimant's average
weekly wage before and after the injury. 	Code § 65.2-502. 	Thus,
by providing suitable alternative employment to a claimant, an
employer may avoid paying compensation benefits. 	However, the
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
pre-injury duties.
Ms. Graham was not released to return to her duties as a
stocker. 	She was not restored to her pre-injury capacity.
Therefore, Consolidated remains liable to Ms. Graham, because its
duty to compensate her has not been eliminated by the provision
of alternative light duty work.
The decision of the commission is affirmed.
Affirmed.
1The responsibilities of a sales clerk position include:
consumer assistance, operation of a cash register, merchandise
recovery, and the ticketing and stocking of merchandise. 	The job
description requires the "[a]bility to lift a minimum of 10
pounds and perform physical activity at a sustained pace . . . ."
However, Dr. Torre's approval of the position specifically
exempted Ms. Graham from unloading delivery trucks.