From Casetext: Smarter Legal Research

KARR v. BACOVA GUILD, LTD.

Court of Appeals of Virginia
Jun 22, 1993
Record No. 1973-92-3 (Va. Ct. App. Jun. 22, 1993)

Opinion

Record No. 1973-92-3

June 22, 1993

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.

(Malcolm G. Crawford, on brief), for appellant.

(Charles F. Hilton; Cathleen P. Welsh; Wharton, Aldhizer Weaver, on brief), for appellees.

Present: Judges Baker, Elder and Fitzpatrick.


MEMORANDUM OPINION

Pursuant to Code § 17-116.010 this opinion is not designated for publication.


Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27. As the parties are familiar with the facts of the case, we recite them only as necessary to our decision.

The sole issue on this appeal is whether the commission erred in finding that John E. Karr was not entitled to disability benefits after May 22, 1991 because he failed to prove that he marketed his residual work capacity.

"In determining whether a claimant has made a reasonable effort to market his remaining work capacity, we view the evidence in the light most favorable to . . . the prevailing party before the commission. . . ." National Linen Serv. v. McGuinn, 8 Va. App. 267, 270, 380 S.E.2d 31, 32 (1989) (citations omitted). A claimant still has the burden of proving his entitlement to benefits, and to do that he has the burden of proving that he made a reasonable effort to procure suitable work but was unable to market his remaining work capacity.Great Atl. Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 100 (1987) (citation omitted). Unless we can say as a matter of law that Karr's evidence was sufficient to sustain his burden of proof, then the commission's finding is binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).

On March 13, 1991, Karr's treating physician, Dr. Lee Hereford, performed a right carpal tunnel release on Karr. Karr's carpal tunnel condition and resulting surgery were found by the commission to have been caused by an industrial accident while working for Bacova Guild, Ltd. on March 15, 1990. This finding was not an issue on review and is not an issue on this appeal. The March 13, 1991 release surgery was followed by a six to eight week period of disability which ended on May 13, 1991. The record clearly demonstrates that Karr was released by Dr. Hereford on June 14, 1991 to perform his normal work.

On August 20, 1991, Dr. Hereford referred Karr to Dr. David S. Klein for further treatment of right shoulder fibromyalgia. However, Dr. Hereford's office records do not reflect that Karr was in any manner restricted from working after June 14, 1991. Dr. Klein began treating Karr on September 16, 1991 with trigger point injections. The medical records reflect that Karr continued to receive these injections up until January 6, 1992. However, during this period of time Dr. Klein's notes place no restriction on the claimant's work activity. Moreover, the Aid to Dependant Children forms contained in the record do not clearly set out the extent to which Karr may be disabled from working other than to say he is either unable to work or severely limited. A slip signed by Dr. Klein and dated January 21, 1992 allowed Karr to work four hours per day until reevaluation.

Based upon this record, we cannot say as a matter of law that the commission erred in finding that Karr was only partially disabled from May 22, 1991 forward, and that he therefore had a duty to market his residual work capacity.

With regard to the marketing issue, the commission fully considered the factors set out in National Linen, 8 Va. App. at 272-73, 380 S.E.2d at 34-35, and found that Karr did not meet his burden of proving that he made a reasonable effort to market his remaining work capacity. This finding is supported by credible evidence in the record and will not be disturbed on appeal.

Contrary to Karr's assertion in his opening brief, the record does not contain evidence that he registered with the Virginia Employment Commission. The only evidence in the record with regard to the marketing issue is that, in a one year period, Karr contacted his two previous employers. These employers had no work for Karr. The only work engaged in by Karr was mowing a few lawns and doing a little painting. He presented no evidence of even minimal efforts to refer to the help wanted ads nor did he present evidence of any concerted effort on his part to make a job search.

For the reasons stated, we affirm the commission's decision.

Affirmed.


Summaries of

KARR v. BACOVA GUILD, LTD.

Court of Appeals of Virginia
Jun 22, 1993
Record No. 1973-92-3 (Va. Ct. App. Jun. 22, 1993)
Case details for

KARR v. BACOVA GUILD, LTD.

Case Details

Full title:JOHN E. KARR v. BACOVA GUILD, LTD. AND HARTFORD CASUALTY INSURANCE COMPANY

Court:Court of Appeals of Virginia

Date published: Jun 22, 1993

Citations

Record No. 1973-92-3 (Va. Ct. App. Jun. 22, 1993)