Opinion
Record No. 2138-93-3
April 19, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Gary L. Lumsden, on briefs), for appellant.
(Joseph C. Veith, III, on brief), for appellees Transervice Corporation and Zurich Insurance Company.
No brief for appellees Blue Ridge Transfer Company, Inc., Liberty Mutual Fire Insurance Company, T.T.C., Inc. or Continental Insurance Company.
Present: Judges Barrow, Koontz and Bray
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Wallace E. LaRue (claimant) contends that the commission erred in finding that he was not entitled to disability benefits on the basis that he failed to market his residual work capacity. 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.
Claimant, who was 61 years old at the time of the hearing, has a seventh grade education and has worked in manual labor most of his life. He ceased working in mid-August 1992 as a result of pain in his shoulders which the commission found to be causally related to a January 29, 1992 injury by accident. Previously, in May 1992, the treating orthopedist, Dr. Bertram Spetzler, had released claimant to return to light duty work because he had reached maximum medical improvement, imposing a lifting restriction of seventy-five pounds.
The commission's findings that claimant sustained a new injury by accident on January 29, 1992 and that his disability beginning after August 12, 1992 was causally related to the January 29, 1992 accident, have not been appealed. Therefore, these rulings are final and need not be addressed by this Court.
On September 3, 1992, after reviewing claimant's functional capacity evaluation, Dr. Spetzler opined that claimant was permanently partially disabled from working with his shoulders above the waist level in any carrying or lifting capacity. Dr. Spetzler opined that claimant could not return to his work as a dock loader, but that he could perform some type of office work, such as a dispatcher or some similar function which did not require lifting or carrying.
From August 1992 up until October 1992, claimant did not look for work. Claimant testified that after October 1992 he "called about 50 or 60 places . . . well, I called a gardener where maybe I could plant some flowers for him or something but they didn't need nobody at the time." Claimant admitted that he had not applied for any jobs since he stopped working in August 1992. There is no evidence in the record that he ever registered with the Virginia Employment Commission ("VEC"). Moreover, there is no evidence in the record to document the places of employment allegedly contacted by claimant.
Based upon this record, the commission made the following findings in its October 8, 1993 opinion:
. . . Dr. Spetzler's September 3, 1992 report states that the claimant is only partially disabled and that he could perform light duty work that requires no lifting or carrying. The claimant 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). Even the claimant's expert witness on rehabilitation counseling, who at first stated the claimant was unemployable, testified on cross-examination that the claimant could work in a gas station taking money or in a "photomat." Therefore, given no other evidence of a job search, we find that the claimant has failed to meet his burden of proving that he made a reasonable effort to market his remaining work capacity.
Dr. Spetzler's opinion constitutes credible evidence to support the commission's finding that claimant was only partially disabled. This finding will not be disturbed on appeal.James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). Furthermore, the lack of credible evidence regarding claimant's marketing effort supports the commission's denial of an award of compensation. Initially, claimant made no effort to market his remaining work capacity. Thereafter, he made some undocumented phone calls, but failed to apply for any jobs. He never registered with the VEC. Based upon this record, we cannot say as a matter of law that the commission erred in finding that claimant failed to prove that he made a reasonable effort to market his remaining work capacity.
Claimant contends that the Commission overlooked and/or disregarded his answers to interrogatories wherein he identified over eighty potential employers he had contacted in his effort to locate suitable employment. However, those answers to interrogatories were not moved into evidence nor made a part of the record of the hearing before the deputy commissioner. We decline to make the assumption that the commission overlooked those answers in arriving at its conclusion, particularly where the answers are not shown by the record to have been moved into evidence. Moreover, we would also have to assume that the commission would have accepted the answers as true. The list of prospective employers was never subject to cross-examination or refutation. Appeals to this Court are decided on the basis of the record made at the hearing, resulting in the opinion from which the appeal is taken. The burden of providing an adequate record on the marketing issue rests with the claimant. This record shows that claimant failed to meet his burden of proof.
Claimant's contention that the commission's decision should be reversed because the employer did not provide evidence of job availability within claimant's geographical area is also without merit. It is the employee's burden, not the employer's, to prove that he made a reasonable effort to market his remaining work capacity.
Finally, claimant's contention that the commission's decision should be reversed based upon the testimony of claimant's rehabilitation expert is without merit. The expert admitted that he had not interviewed claimant until the morning of the hearing. His testimony was not based upon a labor market survey, but rather was premised upon conclusory statements based upon his experience. He testified that there were no jobs in the area within the claimant's restrictions. However, on cross-examination, the expert admitted that, pursuant to Dr. Spetzler's restrictions, claimant could perform dispatching work, work in a gas station taking money, work in a photomat, or work as a security guard. Based upon these facts, the commission, in its role as fact finder, was entitled to give little or no weight to the expert's testimony.
For the reasons stated, we affirm the commission's decision.
Affirmed.