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Lipscomb v. Quality Foods Coop.

Court of Appeals of Virginia
Feb 12, 2002
Record No. 2473-01-3 (Va. Ct. App. Feb. 12, 2002)

Opinion

Record No. 2473-01-3.

February 12, 2002.

Appeal from the Virginia Workers' Compensation Commission.

(Craig P. Tiller; Davidson, Sakolosky, Moseley Tiller, P.C., on brief), for appellant.

(W. Christopher Wickham; Robert Harrington Associates, on brief), for appellees.

Present: Judges Elder, Bray and Senior Judge Overton.


MEMORANDUM OPINION

Pursuant to Code § 17.1-413, this opinion is not designated for publication.


Jonathan L. Lipscomb (claimant) contends the Workers' Compensation Commission (commission) erred in denying him an award of temporary total disability benefits on the ground that he failed to adequately market his residual work capacity beginning November 17, 2000. Upon reviewing the record and the parties' briefs, we conclude that this appeal is without merit. Accordingly, we summarily affirm the commission's decision. Rule 5A:27.

A partially disabled employee is required to make reasonable efforts to market his residual earning capacity to be entitled to receive continued benefits. See National Linen Serv. v. McGuinn, 8 Va. App. 267, 269, 380 S.E.2d 31, 33 (1989). "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." Id. at 270, 380 S.E.2d at 33. "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).

Unless we can say as a matter of law that claimant's evidence sustained his burden of proof, the commission's findings are binding and conclusive upon us. See Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).

On November 17, 2000, Dr. William E. Albers, an orthopedist, released claimant to light-duty work, consisting of "sit down work with [right] hand dominant work, . . . [changing] positions when necessary." Claimant asked employer whether any light-duty jobs were available. Employer told claimant there were no light-duty positions available. Claimant admitted that he made no further efforts to find suitable employment.

In light of claimant's failure to market his residual work capacity, other than his one inquiry of employer, the commission, as fact finder, could reasonably conclude that claimant did not make an adequate effort to find employment within his restrictions.

Based upon this record, we cannot find as a matter of law that claimant's evidence sustained his burden of proving that he adequately marketed his residual work capacity as of November 17, 2000. Accordingly, we affirm the commission's decision.

Affirmed.


Summaries of

Lipscomb v. Quality Foods Coop.

Court of Appeals of Virginia
Feb 12, 2002
Record No. 2473-01-3 (Va. Ct. App. Feb. 12, 2002)
Case details for

Lipscomb v. Quality Foods Coop.

Case Details

Full title:JONATHAN L. LIPSCOMB v. QUALITY FOODS COOPERATIVE, INC. AND SELECTIVE…

Court:Court of Appeals of Virginia

Date published: Feb 12, 2002

Citations

Record No. 2473-01-3 (Va. Ct. App. Feb. 12, 2002)