MARKETING
In order to continue receiving workers' compensation benefits, a
claimant must make a reasonable effort to market his remaining capacity to work. Herbert
Brothers v. Jenkins, 14 Va. App. 715, 717, 419 S.E.2d 283, 284 (1992); National
Linen Service v. McGuinn, 8 Va. App. 267, 269, 380 S.E.2d 31, 33 (1989). In
determining a claimant's "reasonable efforts," the commission may consider his voluntary
removal from the job market. McGuinn, 8 Va. App. at 272 n.5, 380 S.E.2d at 34
n.5.
"In order to continue to receive benefits under the Workers'
Compensation Act, a claimant who has been injured in a job-related accident must market
[her] remaining capacity to work." Herbert Bros. v. Jenkins, 14 Va. App.
715, 717, 419 S.E.2d 283, 284 (1992).
"What constitutes a reasonable marketing effort depends
upon the facts and circumstances of each case." Greif Companies v. Sipe,
16 Va. App. 709, 715, 434 S.E.2d 314, 318 (1993). In deciding whether a partially disabled
employee has made reasonable good-faith efforts to find suitable employment commensurate
with [her] abilities, the commission should consider such factors as: (1) the nature and
extent of employee's disability; (2) the employee's training, age, experience, and
education; (3) the nature and extent of employee's job search; (4) the employee's intent
in conducting [her] job search; (5) the availability of jobs in the area suitable for the
employee, considering [her] disability; and (6) any other matter affecting employee's
capacity to find suitable employment. National Linen Serv. v. McGuinn,,, 8 Va. App.
267, 272, 380 S.E.2d 31, 34 (1989)."The commission . . .determines which of these or
other factors are more or less significant with regard to the particular case." Id.
at 272-73, 380 S.E.2d at 34-35.
In order to establish an entitlement to benefits, a partially
disabled employee must prove that he or she has made a reasonable effort to procure
suitable work but has been unable to do so. Great Atlantic & Pacific Tea Co. v.
Bateman, 4 Va. App. 459, 359 S.E.2d 98 (1987).
In order to receive continued benefits under a change-in-condition
application, a partially disabled employee must prove that he made reasonable
efforts to market his residual wage-earning capacity. See, e.g., Virginia Int'l Terminals v.
Moore, 22 Va. App. 396, 401, 470 S.E.2d 574, 577 (1996) (citing National
Linen Serv. v. McGuinn, 8 Va. App. 267, 269, 380 S.E.2d 31, 34 (1989)), aff'd, 254 Va.
46, 486 S.E.2d 528 (1997). Greif Cos. v. Sipe, 16 Va. App. 709, 716, 434 S.E.2d
314, 318(1993). However, "[w]here, as here, there is no conflict in the evidence,
'the question of the sufficiency of the evidence is one of law.'" CLC Constr. Inc.
v. Lopez, 20 Va. App. 258, 267, 456 S.E.2d 155, 159 (1995) (quoting National Linen
Serv., 8 Va. App. at 270, 380 S.E.2d at 33). "What constitutes a reasonable
marketing effort depends on the facts and circumstances of each case." Sipe,
16 Va. App. at 715, 434 S.E.2d at 318.
One factor to be considered in evaluating the reasonableness of
a claimant's marketing efforts is the nature and extent of the job search. See ARA Servs. v. Swift,
22 Va. App. 202, 206, 468 S.E.2d 682, 684 (1996) (citing National Linen Serv. v.
McGuinn, 8 Va. App. 267, 272, 380 S.E.2d 31, 34 (1989)). Claimant may not
restrict himself to contacting only his employer. See, e.g., Nowlin v.
Westvaco Corp., VWC Nos. 170-74-58, 170-74-59 (Feb. 13, 1996) (an employee who is
released to light duty work has the obligation to seek work from other employers in order
to demonstrate a reasonable effort to market [his] residual work capacity, and cannot
limit a job search because of considerations regarding the effect her efforts and
potential employment might have on union benefits.); Hall v. C.R. Hudgins
Plating, Inc., 70 O.I.C. 237 (1991) (claimant failed to prove reasonable marketing
where she had not sought light work elsewhere because she anticipated being recalled by
employer). Reynolds v. Gust K. Newberg Constr. Co., 70 O.I.C. 236 (1991) (employee
not justified in refusing selective employment because acceptance would jeopardize his union
pension benefits); Diehl v. Reynolds Metals Co., 67 O.I.C. 188, 191 (1988) (The
Workers' Compensation Act does not operate in a vacuum and collective bargaining
agreements may be related to exercise by the parties of rights and duties prescribed under
the Act. Nevertheless, the Act does not in any way define or guarantee the right of an
employee to remain in a particular employment.); Witt v. Kenrose Mfg. Co., 55
O.I.C. 381 (1973) (employee who abandoned non-union light duty to protect her union
status not eligible for benefits).
Claimant was not required to further market her residual
capacity because she acted reasonably in accepting the light-duty employment offered by
her pre-injury employer. ARA Servs. v. Swift,
22 Va. App. 202, 468 S.E.2d 682 (1996). In ARA Servs., the commission found that
the claimant reasonably and adequately marketed her remaining residual capacity because
she accepted part-time light-duty employment with her employer. See id.
at 205, 468 S.E.2d at 683. On appeal, the employer argued that the claimant was required
to look for full-time employment within her restrictions and that "mere
employment" was insufficient to sustain her burden in proving that she marketed her
residual capacity. Id. at 207, 468 S.E.2d at 684. Rejecting employer's argument,
the Court of Appeals held: [C]laimant returned to her pre-injury employment. When she was
unable to perform the job because of the lifting involved, employer offered her light-duty
employment. Claimant accepted in good faith the light-duty position offered by her
pre-injury employer, and no evidence in the record shows that she was told to seek
additional employment. Id. Claimant is thus entitled to temporary partial
benefits. Grace Ellen
Falls v. Virginia Mennonite Retirement, Record No. 1326-98-3 (December 22,
1998).
Claimant failed to properly prove marketing. Although
claimant kept records of mileage to doctors, he did not do so for his alleged job
contacts. In almost six months there were only seven places of potential employment in the
Washington Metropolitan Area that he found at which he could file applications. He
apparently did not register with the Virginia Employment Commission and utilize their
services in attempting to locate employment. Considering the factors set forth in
National
Linen Service v. McGuinn, 8 Va. App. 267, 380 S.E.2d 31 (1989), claimant has not
demonstrated a reasonable effort to fully market his residual capacity. Frank Edward Sergi v. Washington
Metro Area Transit Authority, Record No. 2107-98-4 (March 2, 1999).
WP Version.
"In order to continue to receive benefits under the Workers'
Compensation Act, a claimant who has been injured in a job-related accident must
market [her] remaining capacity to work." Herbert Bros. v. Jenkins,
14 Va. App. 715, 717, 419 S.E.2d 283, 284 (1992). "What constitutes a reasonable
marketing effort depends upon the facts and circumstances of each case." Greif
Companies (GENESCO) v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318 (1993). [I]n
deciding whether a partially disabled employee has made reasonable effort to find suitable
employment commensurate with [her] abilities, the commission should consider such factors
as: (1) the nature and extent of employee's disability; (2) the employee's training, age,
experience, and education; (3) the nature and extent of employee's job search; (4) the
employee's intent in conducting [her] job search; (5) the availability of jobs in the area
suitable for the employee, considering [her] disability; and (6) any other matter
affecting employee's capacity to find suitable employment. National Linen Serv. v.
McGuinn, 8 Va. App. 267, 272, 380 S.E.2d 31, 34 (1989) (footnotes omitted). "The
commission . . . determines which of these or other factors are more or less significant
with regard to the particular case." Id. at 272-73, 380 S.E.2d at 34-35. In examining
a claimant's "intent in conducting [her] job search," the commission must decide
"whether it was evident from the employee's conduct that [s]he was acting in
good faith in seeking suitable employment." Id. at 272 n.3, 380 S.E.2d at 34
n.3. "Other factors that the commission should consider include whether
the employee voluntarily removed [her]self from the job market, whether
the employee unreasonably restricted the geographic area of [her] search, and whether . .
. she is capable of being retrained." Id. at 272 n.5, 380 S.E.2d at 34 n.5
(emphasis added) (citation omitted). Similarly, another factor that the commission should
consider is whether the employee unreasonably restricted her job search by
imposing a time limitation, as in the instant case. "Upon judicial
review of the commission's finding that a claimant has made a reasonable marketing effort,
the Court must view the evidence in the light most favorable to the prevailing party.
However, where, as here, there is no conflict in the evidence as to the relevant factors,
the question of sufficiency is one of law." Sipe, 16 Va. App. at 716, 434
S.E.2d at 318 (citation omitted). Under the circumstances existing in this case, we cannot
say as a matter of law that the commission erred in finding that claimant adequately
marketed her residual capacity and did not remove herself from the labor market by
continuing to attend nursing school while attempting to work. The
commission specifically found as follows: [C]laimant cooperated with vocational
rehabilitation efforts, obtained employment, attempted to return to her pre-injury
employment, and worked while attending nursing school full-time. [She] is also willing to
attempt her pre-injury employment again and is available to work full-time hours. These
hours are also identical to those required by her pre-injury employment since 1988. Under
these circumstances, we find that the employee has not removed herself from the labor
market and is entitled to compensation. In making these findings, the commission
implicitly determined that claimant reasonably marketed her remaining work capacity. The
commission must weigh the McGuinn factors in determining whether an employee has
adequately marketed his or her remaining capacity to work, and this determination depends
upon the facts in each case. One factor may provide greater support for the commission's
decision than another based on the overall circumstances in each case. In the instant
case, the evidence established that: (1) after her accident, claimant accepted light-duty
employment with employer as a charter and worked at the hospital until the charter
position was eliminated in December 1993; (2) claimant cooperated fully with the
vocational rehabilitation counselor provided by employer by meeting with the counselor
three times, submitting several employment applications, and complying with all of the
counselor's requests; (3) claimant registered with the VEC and obtained part-time
employment at NTS; (4) claimant also worked as a baby-sitter and as a companion, often
working two jobs while attending school full time; (5) in August 1994, claimant applied
for the courier position at the hospital; (6) employer never offered the courier position
to claimant but tried to find someone to split the hours with claimant; (7) before her
accident, claimant enrolled as a nursing student and employer engaged in "creative
scheduling" to tailor claimant's work hours to her school hours; (8) since October
1988, claimant had worked the second shift from 3:00 p.m. to 11:30 p.m. and, after the
accident, claimant was available for second-shift work at all times; and (9) claimant is
willing to attempt her pre-injury employment. Although similar time restrictions
on a job search might under other circumstances be unreasonable, credible evidence
supports the commission's finding that claimant's limitation of her search to second-shift
positions was reasonable in light of her extensive marketing efforts and the history
between the parties. Employer essentially lulled claimant into believing that she
was not required to find additional full-time employment. Employer coordinated her school
hours and work hours before and after her accident by providing claimant with second-shift
employment. When claimant applied for the courier position in August 1994, employer did
not offer the position to claimant, but instead searched for someone to share the hours
with her so that her work would not conflict with her education. Thus, both her employment
history with the hospital as a second-shift employee and employer's affirmative
endorsement of claimant's work and school schedule before and after her accident support
the commission's finding that claimant reasonably marketed her remaining work capacity and
did not remove herself from the labor market by attending school full time. Lynchburg General
Hospital v. Antonia Spinazzolo, Record No. 0343-95-3 (March 26,
1996).
A disabled employee is required "to make a
`reasonable effort' to market his remaining work capacity in order to
receive continued workers' compensation benefits."
National Linen Serv. v.
McGuinn, 8 Va. App. 267, 269, 380
S.E.2d 31, 33 (1989) (citations omitted).
"[W]hat is reasonable in a given case will depend upon all the
facts and circumstances," id. at 270-71, 380 S.E.2d at 33,
viewed most favorably to the prevailing party, including:(1) the nature and
extent of employee's disability; (2) the employee's training, age,
experience, and education; (3) the nature and extent of employee's job
search; (4) the employee's intent in conducting [her] job search; (5) the
availability of jobs in the area suitable for the employee, considering
[her] disability; and (6) any other matter affecting employee's capacity to
find suitable employment. Id. at 272, 380 S.E.2d at 34 (citations and
footnotes omitted). Her efforts embraced routine searches of local
classified ads and contacts with thirty-four potential employers. Such
evidence supports the commission's conclusion that claimant "sufficiently
marketed her residual capacity." Basic
Construction Company v. Hamilton, Record No.
2844-98-1 (August 17, 1999). WP
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In order to establish entitlement to benefits, a
partially disabled employee must prove that he has made a reasonable effort
to procure suitable work but has been unable to do so. See Great Atl.
& Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 101
(1987). "What constitutes a reasonable marketing effort depends upon
the facts and circumstances of each case." The Greif Companies v.
Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318 (1993). The factors the
commission should consider in deciding whether a claimant has made
reasonable good faith efforts to market his or her remaining capacity are:
(1) the nature and extent of employee's disability; (2) the employee's
training, age, experience, and education; (3) the nature and extent of
employee's job search; (4) the employee's intent in conducting his job
search; (5) the availability of jobs in the area suitable for the employee,
considering his disability; and (6) any other matter affecting employee's
capacity to find suitable employment. National Linen Serv. v.
McGuinn, 8 Va. App. 267, 272, 380 S.E.2d 31, 34 (1989)
(footnotes omitted). The commission did not err in finding claimant properly
marketed her residual capacity. Claimant began searching for alternative
employment on June 27, 1998, through the newspaper, temporary
agencies, and the VEC. The claimant's job search list reflects over
60 employers contacted and includes some repeated attempts and filings
of applications. Considering her age, the extent and nature of her
injury, her experience, and her eventual success in getting a new job,
yjr claimant adequately marketed. Contrary to employer's argument, the duty
to market does not require an injured claimant to seek employment from her
previous employer. CVS
Distribution Center/CVS Corp. v. Deloris Battle, Record No.
1993-99-2 (December 21, 1999). WP
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A claimant who has been voluntarily retired, not marketing his
residual capacity and essentially unemployed for the preceding fifty-two weeks may
not be awarded compensation for lost wages while recovering from a work-related
disease. The
purpose of the Workers' Compensation Act is to compensate employees when they lose an
opportunity to engage in work after suffering work-related injuries. Potomac Edison Co.
v. Cash, 18 Va. App. 629, 631, 446 S.E.2d 155, 156 (1994). Based on this purpose, the
Act compensates injured employees for loss of earning capacity. Bosworth v. 7-Up
Distrib. Co., 4 Va. App. 161, 163, 355 S.E.2d 339, 340 (1987).Compensation is
ultimately dependent upon and determined on the loss of wages. Twenty-First Century
Concrete, Inc. v. Giacchina, 20 Va. App. 326, 331, 457 S.E.2d 379, 381
(1995) (allowing compensation for actual lost wages for a claimant who had authority to
draw wages but did not because he did not work); Nicely v. Virginia Elec. & Power Co., 195 Va. 819, 823, 80 S.E.2d 529, 531
(1954). Claimant suffered no loss of wages nor any economic loss. An
award of compensation in these circumstances would result in windfall to claimant and
place him in a better economic position than he would have enjoyed absent an injury. This
outcome ignores the purpose of the Act, moving beyond compensation for loss of work
ability and becoming a reward for intangible damages. "A proceeding under the
Act is not one for damages for a wrong done, but to obtain compensation for a loss
sustained by reason of injury and disability." Dillard v. Industrial
Comm'n, 347 F. Supp. 71, 73 (E.D. Va. 1972), vacated on other grounds, 416 U.S. 783
(1974). Claimant's status does not defeat his claim; his lack of income does. Had
claimant, as a retired firefighter, been employed at the time of his incapacity, he would
have been entitled to compensation. Claimant may have been entitled to compensation if he
had even been actively seeking employment on the basis of lost earning capacity. Neither
of these situations comes before the Court. The record before the Court demonstrates that
claimant had no income for the preceding fifty-two weeks and that he was not attempting to
earn income at the time of his incapacity. Arlington County Fire
Department v. David W. Stebbins, Record No. 1199-95-4 (January 30, 1996).
Claimant proved that he made a good faith effort to
market his residual work capacity. The claimant registered with the VEC in
July and November 1997 and reviewed the classified advertisements for
job leads. He submitted a list of over 34 employers whom he personally
contacted in his search for work, and he successfully found work
after three months. The claimant resumed his search when an employer
could no longer employ him, and he has maintained a job since January 5,
1998. He graduated from high school and has experience in performing manual
labor. The evidence does not show that the claimant's search was
unreasonable or that he self-limited his job search. His doctor limited
him to light-duty work, and it is reasonable that he would seek
employment which did not involve heavy manual labor or lifting and bending,
such as carpentry. The claimant still suffers back pain, takes medications,
and does exercises. The testimony of claimant and an employer and the
documentary evidence submitted by claimant detailing his job contacts
constitute credible evidence to support the commission's holding that
claimant proved he adequately marketed his residual capacity applying the
guidelines enumerated in
National
Linen Service v. McGuinn, 8 Va. App. 267, 380 S.E.2d 31
(1989). Billy
Norton/Norton's Marina, Inc., v. Gill, Record No. 0579-99-2 (July
20, 1999). WP
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On May 30, 1995, in which Dr.
[Charles H.] Bonner opined that [claimant] was not suitable for any work.
There are no later work disability slips in the record. Dr. Bonner wrote on
January 20, 1998, that the claimant's restrictions were sitting three
hours, walking 200 feet, standing one-half hour intermittently, and the
"pt states taking bus exceeds his functional capacities." The restrictions
were written on a work disability form and indicated partial, not
complete incapacity. In light of Dr. Bonner's uncontradicted January 20,
1998 work disability form, which established that claimant was partially but
not totally disabled, and the lack of any evidence to indicate that
claimant made any effort to market his residual work capacity, the Court
of Appeals could not find as a matter of law that claimant's evidence
sustained his burden of proof. Harvey
Scott v. Peninsula Airport Commission, Record No.1224-99-2
(September 14, 1999). WP
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A claimant has the burden of
proving entitlement to benefits and that he made a reasonable effort to
procure suitable work and to market his remaining work capacity. See Great
Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98,
100 (1987); National Linen Serv. v. McGuinn,
8 Va. App. 267, 270, 380 S.E.2d 31, 32 (1989). Claimant's physical work
restrictions are not severe, and the claimant has a wide range of marketable
work skills. There were many types of jobs which would be within his work
restrictions. Aside from his attempt to start his own business, the claimant
made almost no effort to otherwise market his residual work capacity, and he
failed to pursue numerous job opportunities available to him. Claimant's
earnings from self-employment were below minimum wage, and were less than
half of his pre-injury average weekly wage. The Commission did not err in
finding that the claimant's earnings from his self-employment did not
reflect his actual wage earning capacity, and considering factors such as
his age, education, skills, work history, and minimal restrictions, that it
was unreasonable that the claimant did not seek suitable employment from
other employers. Lanny
Lee Midkiff, Jr. v. Hampton Rds. Sanitation, Record No.
1554-99-1 (November 2, 1999). WP
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The commission did not err in denying
compensation benefits on the ground that claimant failed to adequately
market his residual work capacity between August 28, 1998 and November
1,1998, the date his physician released him to return to work without
restrictions. During this approximately two-month period of time, claimant
identified only five specific contacts. The claimant's other evidence of
marketing consisted of several unsubstantiated and somewhat conflicting
statements of his attempts to find suitable employment. Claimant’s
testimony concerning a number of other contacts were
"guesstimates" and the claimant did not support this testimony by
identifying any of these alleged contacts. Considering the nature of his
injury, work experience, age, and skills, this is not adequate proof of
marketing over a period of approximately two months. Emmett
Johnson Jafari v. Crater Youth Care Comm., Record No. 2024-99-2
(December 28, 1999). WP
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The Workers' Compensation Commission (commission) did not
err in finding that claimant proved that he adequately marketed his residual
work capacity after August 1, 1998. In order to establish entitlement to
benefits, a partially disabled employee must prove that he has made a
reasonable effort to procure suitable work but has been unable to do so. See
Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359
S.E.2d 98, 101 (1987). "What constitutes a reasonable marketing effort
depends upon the facts and circumstances of each case." The Greif
Companies v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318 (1993). The
factors the commission should consider in deciding whether a claimant has
made reasonable good faith efforts to market his or her remaining capacity
are: (1) the nature and extent of employee's disability; (2) the employee's
training, age, experience, and education; (3) the nature and extent of
employee's job search; (4) the employee's intent in conducting his job
search; (5) the availability of jobs in the area suitable for the employee,
considering his disability; and (6) any other matter affecting employee's
capacity to find suitable employment. National
Linen Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d 31, 34
(1989) (footnotes omitted). Credible evidence proved that claimant suffers
from a significant disability in his neck and lower back preventing him from
performing his pre-injury job as a bus driver. Claimant, age forty-nine,
whose sole employment for the past twenty-three to twenty-four years was
driving a bus, trained himself and secured full-time employment in the
mortgage industry making significant income as of August 1, 1998.
Whether a claimant is entitled to temporary partial disability benefits
depends upon multiple factors, not simply a comparison between the
pre-injury and post-injury wages. Washington
Metropolitan Area Transit v. Baker, Record No. 2108-99-4 (February
8, 2000). WP
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The Workers' Compensation Commission (commission) did not
err in finding that claimant adequately marketed his residual work
capacity beginning April 4, 1996. The claimant, age 47, had a serious
back condition that continued to affect his job search efforts, severely
limiting the opportunities that would otherwise be available to him. The
claimant only had a third grade education, and he could not read or write,
except to sign his name. His minimal education, illiteracy, and limited work
experience as a laborer further severely handicapped his employment
opportunities. His wife had to accompany him on job search excursions,
because he could not fill out employment applications. His wife was
employed, so the claimant's job search efforts were additionally limited to
periods when his wife was not working. His job search efforts were
sufficient to satisfy the Virginia Employment Commission [VEC], which paid
unemployment compensation to [him]. Claimant's testimony, the medical
evidence, and the documentary evidence detailing claimant's job contacts
constitute credible evidence to support the commission's factual findings. Smithfield
Foods v. Charles Johnson, Jr., Record No. 2235-99-2 (February 8,
2000). WP
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