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					VIRGINIA:                                                                        03/20/2003

                                                                             Opinion by the
v.                    VWC File No. 203-33-48


John H. Klein, Esquire
415 St. Paul’s Boulevard
Suite 200
Norfolk, VA 23510
for the Claimant.

Mary Beth Nash, Esquire
Gentry, Locke, Rakes & Moore
P.O. Box 40013
Roanoke, VA 24022-0013
for the Defendants.

     REVIEW on the record by Commissioner Dudley, Commissioner Tarr, and
Commissioner Diamond at Richmond, Virginia.

       This case is before the Commission on the employer’s request for Review of the Deputy

Commissioner's September 5, 2002, Opinion awarding temporary partial disability benefits on a

change in condition claim. We AFFIRM.

       On November 29, 2000, the claimant fell off a ladder and injured his back while working

for the employer as an assistant manager. The claimant received Awards of compensation for

temporary total disability from November 30, 2000, through January 16, 2001, at the weekly rate

of $328.37 based on a pre-injury average weekly wage of $492.55, and temporary partial

disability from January 17, 2001, through January 31, 2001, at the weekly rate of $182.23, based

on weekly earnings of $219.20. The claimant returned to pre-injury work on February 1, 2001,
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at a wage equal to or greater than his pre-injury average weekly wage. This case is currently

before the Commission on the claimant’s application for temporary partial disability benefits

beginning April 27, 2001.

       The claimant testified that his duties as assistant manager for Hardees included

supervising employees, ensuring the sanitation of the store, making biscuits, and frying chicken.

He stated that he sometimes worked alone when the store was not open for business. He also

had to fill in for absent employees, therefore, he could not always delegate heavy tasks.

       The claimant testified that when he resumed working without restrictions, he could not

handle the pace of the work.      He informed Darnell Walker, the store manager, about his

difficulties, and Mr. Walker told him to keep trying. After several weeks, the claimant advised

Mr. Walker that he was quitting due to the pressure on his back and his inability to handle the

work. Mr. Walker did not offer alternative work.

       The claimant returned to work at Wal-Mart as a cake decorator, a job he held before

working at Hardees. The job at Wal-Mart pays less than his job at Hardees but allows him to

work at his own pace and is within the restrictions imposed by Dr. Byrd. The claimant denied

telling Mr. Walker prior to his injury that he was going to quit and return to Wal-Mart. The

claimant testified that since resuming his job at Wal-Mart, he has not looked for any other food

service job that pays the same as his job at Hardees.

       Darnell Walker, store manager of Hardees Little Creek during the period relevant to this

claim, testified that before the claimant’s injury, the claimant mentioned that he was going to

quit and return to his job at Wal-Mart. Mr. Walker testified that when the claimant quit, he said

that he was going to a less strenuous job. However, Mr. Walker also testified that he had no idea

                                                                           VWC File No. 203-33-48

why the claimant quit, and that the claimant never complained of an inability to perform the job

prior to his quitting.

        Mr. Walker testified that there was no problem in offering modified duty to the claimant

whenever he needed it. He stated that he would make sure the claimant did not have to do

anything “excessive.” Mr. Walker stated that if the claimant returned to work at Hardees, he

would be able to delegate duties.

        The medical records reflect that following the accident, the claimant came under the care of

Dr. Donald A. O’Neill, an orthopedist, for lumbar and thoracic sprains and contusions. He

prescribed physical therapy and excused the claimant from work. On December 21, 2000, Dr.

O’Neill reported that an MRI showed a compression fracture in the thoracic area and a small disc

protrusion at L5-S1. The claimant remained out of work. Effective January 15, 2001, Dr. O’Neill

released the claimant to part-time light duty with no lifting, pushing, or pulling over fifteen pounds.

He released the claimant to full duty on January 31, 2001. On February 7, 2001, Dr. O’Neill

reported that the claimant was “much better” and was working full duty “just trying to avoid some

of the heavier lifting.” The claimant was neurologically intact.

        The claimant returned to Dr. O’Neill on July 13, 2001, and advised that his back bothered

him working over twelve hours per day at Hardees and that he was now working at Wal-Mart

decorating cakes. Due to the claimant’s continuing pain, he referred the claimant to Dr. J. Abbott

Byrd, a spine specialist, and prescribed physical therapy. Dr. Byrd evaluated the claimant on

August 15, 2001. He reported a history of the claimant’s accident and continuing complaints of

thoracolumbar pain and some radiation of pain into the buttocks and thigh. Dr. Byrd believed the

fractures at T-12 and L1 healed. He prescribed medication and therapy. On September 26, 2001,

Dr. Byrd ordered an MRI after the claimant presented with a complaint of swelling of the buttocks

                                                                            VWC File No. 203-33-48

in the area where the claimant struck the ground in the accident. The MRI was unremarkable. Dr.

Byrd instructed the claimant to complete his physical therapy.

       On March 1, 2002, Dr. Byrd wrote to claimant’s counsel in response to counsel’s inquiries.

Regarding work restrictions, Dr. Byrd stated, “I do not believe that he should lift more than 15

pounds. Bending should be limited and he is unable to climb ladders.” He opined that the

claimant’s pre-injury job as a manager at Hardees was not within the restrictions.

       On this evidence, the Deputy Commissioner held that the claimant is entitled to temporary

partial disability benefits based on the imposition of work restrictions by Dr. Byrd and the

claimant’s wage loss. The evidence established that the claimant earns $443.50 per week at Wal-

Mart, compared to a pre-injury weekly wage of $492.55. Therefore, the Deputy Commissioner

awarded benefits beginning March 1, 2002, at the weekly rate of $32.70.

       We agree that the claimant is entitled to this Award. There is no issue of refusal of light

duty in this case as the claimant was under no work restrictions at the time he resigned from his pre-

injury job. The evidence establishes that the claimant continued to suffer the effects of his industrial

accident after commencing work at Wal-Mart, and that the work restrictions imposed by Dr. Byrd, a

spine specialist, are related to the industrial injury. The claimant’s pre-injury job is beyond those

restrictions, and Hardees did not make an offer of light duty to the claimant following the

imposition of restrictions. The fact that the claimant voluntarily resigned from his pre-injury job at

Hardees does not preclude him from seeking benefits on a change in condition.

       We reject the employer’s argument that the case cited by the Deputy Commissioner, Davey

Tree Expert Service Co. v. Acuff, 20 Va. App. 320 (1995), is distinguishable because Acuff

suffered a compensable consequence resulting in work restrictions.           Having found the work

restrictions in the case at bar necessitated by the industrial accident, the principle is the same. The

                                                                         VWC File No. 203-33-48

claimant is entitled to compensation for the loss of his ability to perform his pre-injury work. The

Opinion below is therefore AFFIRMED.

       This matter is hereby removed from the Review docket.


       This Opinion shall be final unless appealed to the Virginia Court of Appeals within

30 days of receipt.

cc:    Joseph Montoya
       5033 Montrose Dr.
       Virginia Beach, VA 23464
       (Copy sent Certified Mail)

       Hardees of Little Creek #2261
       P.O. Box 1908
       Rocky Mount, NC 27802-1908

       Boddie Noell Enterprises, Inc.
       G A B Robins North America, Inc.
       P.O. Box 900
       Rocky Mount, NC 27802
       (Copy sent Certified Mail)