Opinion
Record No. 1557-94-1
Decided: December 27, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
(James S. Gilmore, III, Attorney General; Gregory E. Lucyk, Senior Assistant Attorney General; Cheryl A. Wilkerson, Assistant Attorney General, on brief), for appellant. Appellant submitting on brief.
(Stephen A. Strickler; McCardell Inman, on brief), for appellee. Appellee submitting on brief.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The Commonwealth of Virginia, Department of Transportation ("employer") contends on appeal that the Workers' Compensation Commission erred in finding that Earl T. Shearrin proved that he made a reasonable good faith effort to market his remaining work capacity. Finding no error, we affirm the commission's decision.
On July 7, 1993, Shearrin, a mechanic's helper, injured his lower back while working for employer changing tires and oil. Pursuant to the commission's September 11, 1992 award, Shearrin received temporary total disability benefits from July 8, 1992 through February 8, 1993, after which he was returned to his preinjury employment. On March 10, 1993, Shearrin reinjured his back. On April 20, 1993, Shearrin was released to light duty by his treating physician, Dr. Alfred P. Magness, II. Magness restricted Shearrin from lifting objects weighing more than twenty-five pounds. At that time, Shearrin sought a light duty position with employer. However, employer did not have any light duty employment available. On July 19, 1993, Shearrin filed an application alleging a change in condition due to his July 7, 1992 back injury. He sought temporary total disability benefits commencing March 12, 1993.
On August 2, 1993, October 6, 1993, November 18, 1993, and December 6, 1993, Shearrin registered with the Virginia Employment Commission ("VEC"). He also visited four businesses on November 18, 1993, and two businesses on December 7, 1993, two days before the hearing, in order to submit job applications.
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. 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). This Court has discussed factors which the commission should consider in deciding whether a claimant has made reasonable good faith efforts to market his remaining capacity:
(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). In reviewing the commission's findings, "we view the evidence in the light most favorable to . . . the party prevailing before the commission." Id. at 270, 380 S.E.2d at 33. "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.
In awarding temporary total disability benefits to Shearrin for the period from April 20, 1993 to May 15, 1993, and August 2, 1993 and continuing, the commission found that Shearrin's efforts to market his remaining capacity, although not pursued until after August 2, 1993, were reasonable and made in good faith. We cannot say that the commission erred as a matter of law in making this determination. The evidence showed that, in August 1993, as soon as Shearrin was advised by his attorney that he should look for light duty jobs, he registered with the VEC and he applied for jobs with six employers between November and December 1993. In light of Shearrin's disability, lack of formal education, his limited job experience as a manual laborer, and the lack of job prospects in his locality, we find the evidence sufficient to support the commission's finding that Shearrin made a reasonable good faith effort to find employment.
For these reasons, we affirm the commission's findings and award of benefits.
Affirmed.