COURT OF APPEALS OF VIRGINIA

Present:	Chief Judge Fitzpatrick, Judges Annunziata and Agee
Argued at Alexandria, Virginia


POWER AND ALARM COMMUNICATIONS SYSTEM and
 MONTGOMERY MUTUAL INSURANCE COMPANY
			MEMORANDUM OPINION* BY
v.	Record No. 2783-00-4	CHIEF JUDGE JOHANNA L. FITZPATRICK
									JUNE 19, 2001
MICHAEL D. BYERLY


	FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

		James Richard Ryan, Jr. (Pamela A. Kultgen; 
Siciliano, Ellis, Dyer & Boccarosse, on 
briefs), for appellants.

		William A. Musto (Koonz, McKenney, Johnson, 
DePaolis & Lightfoot, on brief), for 
appellee.


	Power and Alarm Communications System and its insurer 
("employer") contend that the Workers' Compensation Commission 
("commission") erred in awarding temporary partial disability 
benefits to Michael D. Byerly ("claimant").   Finding no error, 
we affirm.
I.
	At the time of the accident, claimant had been employed as 
an electrician service truck driver for approximately two years.
At hearing, the parties stipulated that claimant: (1) had a 
pre-injury average weekly wage of $1381.78; (2) sustained a 
compensable workers' compensation injury on or about March 30, 
1999; (3) injured his neck, lower back and right shoulder in the 
accident; and (4) had an initial period of total disability from 
March 31 through July 6, 1999.
	Claimant filed a claim for temporary total benefits for the 
period March 30 through July 20, 1999 and temporary partial 
benefits for the period July 21, 1999 to the present and 
continuing.  Employer defended the claim on the ground that 
claimant was able to return to full-duty work on August 5, 1999 
based on a medical evaluation by Dr. David Dorin or, in the 
alternative, claimant failed to market his residual capacity 
and, therefore, was not entitled to temporary partial benefits.  
The deputy commissioner found claimant totally disabled from 
March 30 through July 20, 1999 and awarded benefits.  He also 
determined that after that date, claimant was capable of 
light-duty work and that claimant failed to establish lost 
earnings as a result of his light-duty restrictions.  On appeal, 
the full commission found (1) there was no evidence claimant was 
fully able to perform the duties of his pre-injury employment, 
and (2) his earnings were less than his pre-injury wage.   The

commission opined "While Dr. Tham [claimant's treating 
physician] has not restricted the claimant's work hours, he has 
restricted his work capacity.  We are not persuaded that 
employer is relieved of its duty to compensate the claimant who 
remains partially disabled."  Employer appeals the commission's 
decision to award temporary partial disability benefits. 
II.
	Employer first contends no credible evidence supports 
commission's finding that claimant was unable to return to his 
pre-injury employment.
	"On appeal, we view the evidence in the light most 
favorable to the claimant, who prevailed before the commission."  
Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d 
335, 340 (1998) (citations omitted).  "A question raised by 
conflicting medical opinion is a question of fact."  WLR Foods 
v. Cardosa, 26 Va. App. 220, 230, 494 S.E.2d 147, 152 (1997).  
"'Decisions of the commission as to questions of fact, if 
supported by credible evidence, are conclusive and binding on 
this Court.'"  Id. (quoting Manassas Ice & Fuel Co. v. Farrar, 
13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991)).  "'The fact 
that there is contrary evidence in the record is of no 
consequence.'"  Id. (quoting Wagner Enters., Inc. v. Brooks, 12 
Va. App. 890, 894, 407 S.E.2d 32, 35 (1991)).
	On July 19, 1999, Dr. William Tham, claimant's treating 
physician, provided a doctor's certificate stating that claimant 
could return to work light duty on July 21, 1999.  Dr. Tham 
stated "[r]estrict work on ladders or scaffolds - no lifting > 
25 lbs."  In his report of November 4, 1999, Dr. Tham increased 
the amount of weight claimant could lift to 40 lbs. and 
restricted pulling motions.  In his response to a questionnaire 
prepared by claimant's counsel, Dr. Tham stated claimant could 
return to work "regular hours" but continued his light-duty 
restrictions.
	While claimant worked in a supervisory position both before 
and after his injuries, claimant testified that his injury and 
its residual effects had curtailed his job activities.  
Pre-injury, he was able to manipulate a 500-lb. spool of wire 
and work constantly on scaffolds and ladders.  His new position 
with Consolidated Engineering Services (CES) was also 
supervisory in nature but he could not "lift, hoist, or move 
ladders as he did before his injury."  He also tried to work a 
40-hour week but averaged 24 to 32 hours due to medical 
appointments.  Employer presented no evidence to contradict

claimant's description of the nature of his pre-injury and 
post-injury jobs.
	"The threshold test for compensability is whether the 
employee is 'able to fully perform the duties of his 
pre[-]injury employment.'"  Celanese Fibers Co. 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)).  
"[An] employer is relieved of its duty to compensate the 
claimant only if it offers the claimant employment in his or her 
"pre-injury capacity" and the claimant has been released to 
perform the work."  Carr v. Virginia Elec. & Power Co., 25 Va. 
App. 306, 311-12, 487 S.E.2d 878, 881 (1997).
	Credible evidence supports the commission's finding that 
claimant had continuing physical limitations as a result of his 
injury and was unable to return to his pre-injury position.
III.
	Employer next contends that claimant "self-limited" his 
hours and refused to work overtime, thus, causing his own wage 
loss.  Employer argues that because there was no medical 
limitation on claimant's hours, he could recoup any salary 
differential through overtime.  Employer concedes that no 
evidence in the record established overtime was available.  The 
unrebutted evidence is claimant's pre-injury base rate wage not 
including overtime was $21.96 per hour.  His base rate wage not 
including overtime post-injury with employer was $18.30 per 
hour.  His base rate wage with Kelly Electrical Services and CES 
was $17.55 per hour without overtime.  Claimant has not earned 
his pre-injury average weekly wage since the date of injury.  
Employer also argues that by limiting his work hours due to 
"flare-ups" and failing to work overtime, claimant limited his 
wages.  We disagree.
	Employer contends that the rationale of Carr does not apply 
to the instant case because the record there affirmatively 
proved that no overtime was available to the employee in his 
light-duty capacity.  Here, the record was silent as to the 
availability of overtime.  We find this argument to be without 
merit.
	We hold claimant is entitled to temporary partial 
disability benefits regardless of the availability of overtime 
because claimant was not released to work in his pre-injury 
position and his post-injury earnings did not equal or exceed 
his pre-injury income.  For the foregoing reasons, the decision 
of the commission is affirmed.
											Affirmed.
* Pursuant to Code  17.1-413 this opinion is not 
designated for publication. 
   Employer states in its question presented that claimant's 
temporary total disability claim was at issue.  However, the 
commission found that the employer did not appeal this 
determination of the deputy commissioner.
   They also found claimant failed to market his residual 
capacity for the period July 21 through August 27, 1999.
   Code  65.2-502 provides in pertinent part:

when the incapacity for work resulting from 
the injury is partial, the employer shall 
pay . . . 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 . . . .