Opinion
Record No. 0144-94-1
Decided: January 10, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Lawrence P. Postol (Seyfarth, Shaw, Fairweather Geraldson, on briefs), for appellant.
(John H. Klein; Rutter Montagna, on brief), for appellee.
Present: Judges Baker, Willis and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
The judgment of the commission is affirmed. On review, we view the evidence in the light most favorable to the party prevailing below. Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986). The findings of the commission, if based on credible evidence, are conclusive and binding on this Court. Morris v. Badger Powhatan/Figgie Int'l Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986).
First, the employer contends that the commission's finding that the claimant was in selective employment at the time of her layoff is not supported by credible evidence. It argues that her position as a records clerk never changed from pre-injury to post-injury, although her job tasks varied. It argues that her pre-injury job required little physical labor and that her work restrictions were only against prolonged overhead activity and were not a complete job prohibition. Thus, the employer argues, the claimant was capable of doing her pre-injury work and was not on selective (light-duty) employment. Robinson v. Consolidated Construction Corp., 47 O.I.C. 282, 283 (1965). We disagree.
The mere fact that the claimant was not officially on selective employment does not alter the fact that she was performing lighter than pre-injury work. She no longer went on-site to review records, but she worked in the library, mainly at a computer. There were permanent restrictions on the type of work she could do. This credible evidence supports the commission's finding.
Second, the employer contends that the claimant is not entitled to compensation because her layoff was unrelated to her injury. It argues that she was laid off along with three co-workers due to economic cutbacks in the defense industry. When an injured person loses selective employment for reasons unrelated to the original injury, he is not entitled to have compensation reinstated, because his disability does not arise from his injury. See Goodyear Tire Rubber Co. v. Watson, 219 Va. 830, 252 S.E.2d 310 (1979).
Goodyear is distinguishable from the present case. The claimant in Goodyear lost his selective employment for reasons unrelated to his injury. He had an excessive rate of absenteeism and his job performance was poor. In this case, the claimant lost her selective employment not because of economic cutbacks, but because of the resulting unavailability of jobs within her restrictions, a reason directly related to her injury.
Third, the employer contends that the commission's finding that the claimant reasonably marketed her remaining work capacity is not supported by credible evidence. In National Linen Service v. McGuinn, 8 Va. App. 267, 380 S.E.2d 31 (1989), we set forth the criteria for determining what constitutes a reasonable market effort: (1) the nature and extent of employee's disability, (2) employee's training, age and experience, (3) nature of and extent of employee's job search, (4) employee's intent in conducting his job search, (5) availability of jobs in the area suitable for employee considering his disability, and (6) any other matter affecting the employee's capacity to find suitable employment. Id. at 272, 380 S.E.2d at 34. An employee on light duty with permanent restrictions may have his workers' compensation benefits reinstated when the employer terminates his light duty employment if the employee makes reasonable efforts to market his remaining work capacity. Huffman v. Toney Arey Trucking, 70 O.I.C. 85, 88 (1991). See also Pleasants v. ATT Microelectronics, 68 O.I.C. 169 (1989) (claimant in light duty service was laid off from job, employer had continuing obligation to provide light work to claimant as long as restrictions continued, or to resume payment of compensation for wage loss).
The employer argues that the claimant has a minor disability, that she is young and has many years of clerical experience, that she did not look for a job for six months from the time of her layoff and then only looked for a few weeks, that she refused the offer of a certified rehabilitation counselor provided by the employer, and that she enrolled full time in school, showing her intent not to return to work.
The claimant's benefits were suspended while she was in school and not looking for employment. The commission found that thereafter she made reasonable efforts to market her remaining capacity for work. She presented affidavits listing the persons to whom she had applied for jobs, she registered with the Virginia Employment Commission, attended an education training program, and sent out resumes. This evidence supports the commission's finding.
Fourth, the employer contends that the commission abused its discretion and denied the employer its due process rights by refusing rebuttal evidence that would have established the claimant's failure to market her remaining work capacity. The record was left open for two weeks post-hearing for the express purpose of allowing the employer to submit such evidence. The employer offered the evidence after the expiration of the two week period. The employer argues that by refusing this evidence the deputy commissioner, and on review the commission, denied its due process right to present rebuttal evidence and failed to consider all relevant evidence. See Mize v. Rocky Mount Ready Mix, Inc., 11 Va. App. 601, 613-14, 401 S.E.2d 200, 207 (1991). We disagree.
The deputy commissioner specifically left the record open for two weeks to allow the employer to investigate claimant's affidavits regarding her job search. The employer failed to submit its evidence within that time. We find no abuse of discretion in the deputy commissioner's refusal to receive the tardily tendered evidence or in the full commission's affirmation of that ruling on appeal.
We affirm the decision of the commission.
Affirmed.