ARA Services v. Swift

468 S.E.2d 682, 22 Va. App. 202, 1996 Va. App. LEXIS 219
CourtCourt of Appeals of Virginia
DecidedApril 2, 1996
Docket0412953
StatusPublished
Cited by18 cases

This text of 468 S.E.2d 682 (ARA Services v. Swift) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
ARA Services v. Swift, 468 S.E.2d 682, 22 Va. App. 202, 1996 Va. App. LEXIS 219 (Va. Ct. App. 1996).

Opinion

FITZPATRICK, Judge.

In this workers’ compensation case, ARA Services and its insurer, Reliance Insurance Company (collectively referred to as employer), appeal the commission’s decision awarding benefits to Sherry L. Swift (claimant). Employer argues that the commission erred in: (1) finding that claimant reasonably and adequately marketed her residual work capacity by accepting offered part-time employment with employer, and (2) requiring employer to provide claimant with a home exercise station. For the reasons that follow, we affirm the commission’s decision.

Claimant injured her left arm and shoulder on December 20, 1991, while working for employer as a route driver. Her job involved lifting items weighing up to seventy-five pounds. Employer accepted the claim as compensable and paid benefits from January 29,1992 to March 30,1992.

Claimant returned to her pre-injury employment on March 30, 1992, with no restrictions. After a week or two, claimant was unable to continue. Employer then reassigned claimant to light-duty work as a vending machine attendant, a position that involved less lifting. In her pre-injury employment, claimant worked forty hours per week and earned $6.25 per hour. In the light-duty position, claimant worked twenty-five hours per week and earned $6.80 per hour.

In a December 10, 1992 report, Dr. Andrew J. Cepulo, claimant’s treating physician, stated: “The patient is to obtain exercise equipment for home use. We reviewed some specific muscles that need to be strengthened, and stretched.... ” On February 4, 1993, Dr. Cepulo again emphasized the importance of claimant “increasing [the] frequency of stretching to deal with acute exacerbations” of her work-related injury. Dr. Cepulo also placed lifting restrictions on her work ability but *205 did not restrict her hours. In a November 8, 1993 report, Dr. Cepulo continued the lifting restrictions, occasional lifting of over fifty pounds and frequent lifting of thirty to forty pounds, but again did not limit claimant’s hours. Dr. Cepulo prescribed a home exercise station “to allow upper [and] lower extremity home strengthening program to reduce pain,” and approved additional treatment from Dr. Laura Liles, an osteopathic physician. Dr. Liles prescribed a treadmill for claimant “to be able to walk daily, regardless of weather, to work on chronic cervical strain.” Claimant purchased the home exercise station for $208.99 and placed it in her home.

Claimant filed an application for change in condition by letter on December 16, 1993, January 31, 1994, and June 7, 1994. Claimant requested temporary partial disability benefits beginning September 18, 1993; reimbursement for the home exercise station prescribed by Dr. Cepulo; and provision of a treadmill as prescribed by Dr. Liles. In awarding claimant benefits, the commission found that: (1) claimant adequately marketed her residual work capacity by accepting part-time employment offered by employer because she would have been subject to termination if she had refused the light-duty position; and (2) the home exercise station was reasonable and necessary for claimant’s recovery. Her request for the treadmill was denied.

MARKETING OF RESIDUAL WORK CAPACITY

Employer argues that claimant did not reasonably and adequately market her remaining residual capacity because she accepted part-time light-duty employment offered by employer and failed to obtain full-time employment elsewhere.

On appeal, this Court reviews “the evidence in the light most favorable to the prevailing party.” R.G. Moore Bldg. Corp. v. Mullins, 10 Va.App. 211, 212, 390 S.E.2d 788, 788 (1990). “Factual findings of the ... [commission will be upheld on appeal if supported by credible evidence.” James v. Capitol Steel Constr. Co., 8 Va.App. 512, 515, 382 S.E.2d 487, 488 (1989).

*206 A partially disabled employee “must make a reasonable effort to market his remaining capacity to work in order to continue receiving workers’ compensation benefits.” Virginia Wayside Furn., Inc. v. Burnette, 17 Va.App. 74, 78, 435 S.E.2d 156, 159 (1993). “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). In National Linen Service v. McGuinn, 8 Va.App. 267, 380 S.E.2d 31 (1989), we identified six factors that the commission must consider in determining whether an employee has reasonably and adequately marketed his or her remaining work 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 [her] job search; (5) the availability of jobs in the area suitable for the employee, considering [her] disability; and (6) any other matter affecting employee’s capacity to find suitable employment.

Id. at 272, 380 S.E.2d at 34 (footnotes omitted).

The commission must also consider “whether the employee cooperated with the employer and if the employer availed itself of its opportunity to assist the claimant in obtaining employment.” Id. at 272 n. 5, 380 S.E.2d at 34 n. 5. If an injured employee unjustifiably refuses selective employment offered by the employer, he or she is “no longer entitled to receive disability compensation during the continuance of the refusal.” Virginia Wayside Furn., 17 Va.App. at 78, 435 S.E.2d at 159; see Code § 65.2-510(A). 1

*207 In the instant case, claimant promptly returned to her pre-injury employment but was physically unable to continue her earlier duties. Employer then offered claimant a light-duty position and reassigned her. The commission expressly found that, “[i]f the claimant had refused this job, she would have been subject to a termination of benefits for refusing suitable employment.” We agree and hold that, under the circumstances in this case, claimant acted reasonably in accepting the part-time light-duty employment offered by her pre-injury employer and adequately marketed her residual work capacity.

Employer mistakenly relies on this Court’s holding in National Linen that mere employment is “insufficient proof of making a reasonable effort to market one’s remaining work capacity.” See 8 Va.App. at 268, 380 S.E.2d at 32. When the claimant in National Linen was able to return to work, he did not seek employment with his pre-injury employer, and his former employer did not offer him employment.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

CVS 1549/CVS of Virginia, Inc. v. Plunkett
702 S.E.2d 578 (Court of Appeals of Virginia, 2010)
Simmons v. Comfort Suites Hotel
968 A.2d 1123 (Court of Special Appeals of Maryland, 2009)
Downen v. Hercules, Inc.
50 Va. App. 111 (Court of Appeals of Virginia, 2007)
Dowden v. Hercules, Inc.
644 S.E.2d 93 (Court of Appeals of Virginia, 2007)
Minton & Roberson, Inc. v. Michael Anthony Wynter
Court of Appeals of Virginia, 2006
Arnold H. Holeman, Jr. v. Harold Holeman
Court of Appeals of Virginia, 2001
Hillcrest Manor Nursing Home v. Underwood
542 S.E.2d 785 (Court of Appeals of Virginia, 2001)
Daniel W. Page v. Lynchburg Foundry Company,et al.
Court of Appeals of Virginia, 2000
USAir, Inc. v. Robert S. Joyce
Court of Appeals of Virginia, 1999
Grace Ellen Falls v. Virginia Mennonite Retire., et
Court of Appeals of Virginia, 1998
USAir, Inc. v. Joyce
497 S.E.2d 904 (Court of Appeals of Virginia, 1998)
William R. Perrigan v. Clinchfield Coal Company
Court of Appeals of Virginia, 1997

Cite This Page — Counsel Stack

Bluebook (online)
468 S.E.2d 682, 22 Va. App. 202, 1996 Va. App. LEXIS 219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ara-services-v-swift-vactapp-1996.