COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner Argued at Salem, Virginia
GRACE ELLEN FALLS MEMORANDUM OPINION * BY v. Record No. 1326-98-3 CHIEF JUDGE JOHANNA L. FITZPATRICK DECEMBER 22, 1998 VIRGINIA MENNONITE RETIREMENT AND CENTURY INDEMNITY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION A. Thomas Lane, Jr., for appellant.
Douglas A. Seymour (Law Offices of Harold A. MacLaughlin, on brief), for appellee.
In this workers' compensation case, Grace Ellen Falls
(claimant) appeals the commission's decision denying her claim
for temporary partial disability benefits. Claimant argues that
the commission erred in finding that she did not adequately and
reasonably market her residual work capacity, even though she
accepted part-time light-duty employment offered by Virginia
Mennonite Retirement (employer). For the following reasons, we
reverse the commission's decision.
I.
On October 3, 1990, claimant, a nurse assistant, suffered an
injury to her lower back in the scope and course of employment.
Her claim was accepted by employer, and several awards for
compensation benefits and medical benefits have been entered. * Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Disability benefits were terminated in 1995.
At the time of her injury, claimant's duties included
bathing, dressing and feeding patients, as well as assisting them
to and from their beds. Most of her job required standing during
an eight-hour shift.
The medical evidence established that following her
work-related injury, claimant was given a number of work
restrictions. On November 30, 1995, claimant's treating
physician, Dr. David Klein, limited her to working no more than
fifteen hours per week. 1 On April 27, 1997, Dr. Stephen
Riggleman, a chiropractor, indicated that claimant would have
limitations on "lifting, standing, walking, pushing, [and]
pulling," beginning March 11, 1994. Dr. Klein subsequently
opined that since February 5, 1993, claimant should be restricted
from lifting no more than 25 pounds and standing no more than two
hours at a time. At employer's request, Dr. Galen Craun, an
orthopedic surgeon and attending physician at the time of injury,
performed an independent medical evaluation of claimant on July
21, 1997. He opined that claimant could not return to work
without restrictions and he agreed with those set forth by Dr.
Riggleman.
1 Claimant's previous work restrictions, as noted by the commission, included the following: "On February 5, 1995, [Dr. Klein] limited her workday to a maximum of eight hours, with no lifting over 30 pounds. On April 5, 1994, Dr. Klein restricted the claimant to four hours per day. On June 23, 1994, he limited her work hours to five hours per day."
- 2 - After her injury, claimant accepted light-duty work offered
by her employer. She testified that beginning January 1, 1997,
she worked every other weekend, five hours per day. When she was
originally offered these hours, claimant asked her supervisor,
Cathy Suiter, if more work was available. Employer stated there
was none. Thereafter, neither claimant nor employer approached
the other about increasing her hours. Claimant has not sought
other employment. Due to the limited working hours, claimant earned less than
her pre-injury wage and she filed a claim seeking temporary
partial benefits from January 1, 1997 and continuing. 2 The
commission held that claimant could not return to her pre-injury
employment, but that she was not completely disabled.
Accordingly, claimant was required to market her residual
capacity. In denying benefits, the commission wrote: The Deputy Commissioner found, and we agree, that the claimant failed to prove that she made a reasonable effort to secure suitable employment within her physical limitations. . . . Sufficient residual capacity exists between the biweekly ten hours the claimant works and her capabilities, and there is a reasonable likelihood that, within her community, she could have found a job working 15 hours per week under her medical restrictions. Moreover, evidence that such a position does not exist would have aided her claim. However, the claimant did not even minimally attempt to market herself. There is 2 Claimant also sought temporary total disability benefits for February 21 through February 24, 1997, which was awarded by the commission. This finding has not been appealed by either party.
- 3 - absolutely no evidence of her registering with the Virginia Employment Commission or simply looking in the help-wanted section of the newspaper. We cannot find that the claimant has made a good faith effort to market her residual capacity within the tolerance of her physical ability.
II.
In order to receive benefits under a change-in-condition
application, claimant must prove that she made reasonable efforts
to market her residual wage earning capacity. See Virginia Int'l Terminals, Inc. v. Moore, 22 Va. App. 396, 401, 470 S.E.2d 574,
577 (1996). "What constitutes a reasonable marketing effort
depends upon the facts and circumstances of each case." Grief
Cos. (GENESCO) v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318
(1993). Where there is no conflict in the evidence, the question
of the sufficiency of the evidence is one of law. See CLC
Constr., Inc. v. Lopez, 20 Va. App. 258, 267, 456 S.E.2d 155, 159
(1995).
In National Linen Serv. 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 her remaining work capacity. These
include: (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
- 4 - 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.
Claimant argues that the commission erred in finding that
she did not make a "reasonable effort to secure suitable
employment within her physical limitations." Relying on our
decision in ARA Servs. v. Swift, 22 Va. App. 202, 468 S.E.2d 682 (1996), she contends that she was not required to further market
her residual capacity because she acted reasonably in accepting
the light-duty employment offered by her pre-injury employer. We
agree and reverse the commission's finding.
In ARA Servs., the commission found that the claimant
reasonably and adequately marketed her remaining residual
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner Argued at Salem, Virginia
GRACE ELLEN FALLS MEMORANDUM OPINION * BY v. Record No. 1326-98-3 CHIEF JUDGE JOHANNA L. FITZPATRICK DECEMBER 22, 1998 VIRGINIA MENNONITE RETIREMENT AND CENTURY INDEMNITY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION A. Thomas Lane, Jr., for appellant.
Douglas A. Seymour (Law Offices of Harold A. MacLaughlin, on brief), for appellee.
In this workers' compensation case, Grace Ellen Falls
(claimant) appeals the commission's decision denying her claim
for temporary partial disability benefits. Claimant argues that
the commission erred in finding that she did not adequately and
reasonably market her residual work capacity, even though she
accepted part-time light-duty employment offered by Virginia
Mennonite Retirement (employer). For the following reasons, we
reverse the commission's decision.
I.
On October 3, 1990, claimant, a nurse assistant, suffered an
injury to her lower back in the scope and course of employment.
Her claim was accepted by employer, and several awards for
compensation benefits and medical benefits have been entered. * Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Disability benefits were terminated in 1995.
At the time of her injury, claimant's duties included
bathing, dressing and feeding patients, as well as assisting them
to and from their beds. Most of her job required standing during
an eight-hour shift.
The medical evidence established that following her
work-related injury, claimant was given a number of work
restrictions. On November 30, 1995, claimant's treating
physician, Dr. David Klein, limited her to working no more than
fifteen hours per week. 1 On April 27, 1997, Dr. Stephen
Riggleman, a chiropractor, indicated that claimant would have
limitations on "lifting, standing, walking, pushing, [and]
pulling," beginning March 11, 1994. Dr. Klein subsequently
opined that since February 5, 1993, claimant should be restricted
from lifting no more than 25 pounds and standing no more than two
hours at a time. At employer's request, Dr. Galen Craun, an
orthopedic surgeon and attending physician at the time of injury,
performed an independent medical evaluation of claimant on July
21, 1997. He opined that claimant could not return to work
without restrictions and he agreed with those set forth by Dr.
Riggleman.
1 Claimant's previous work restrictions, as noted by the commission, included the following: "On February 5, 1995, [Dr. Klein] limited her workday to a maximum of eight hours, with no lifting over 30 pounds. On April 5, 1994, Dr. Klein restricted the claimant to four hours per day. On June 23, 1994, he limited her work hours to five hours per day."
- 2 - After her injury, claimant accepted light-duty work offered
by her employer. She testified that beginning January 1, 1997,
she worked every other weekend, five hours per day. When she was
originally offered these hours, claimant asked her supervisor,
Cathy Suiter, if more work was available. Employer stated there
was none. Thereafter, neither claimant nor employer approached
the other about increasing her hours. Claimant has not sought
other employment. Due to the limited working hours, claimant earned less than
her pre-injury wage and she filed a claim seeking temporary
partial benefits from January 1, 1997 and continuing. 2 The
commission held that claimant could not return to her pre-injury
employment, but that she was not completely disabled.
Accordingly, claimant was required to market her residual
capacity. In denying benefits, the commission wrote: The Deputy Commissioner found, and we agree, that the claimant failed to prove that she made a reasonable effort to secure suitable employment within her physical limitations. . . . Sufficient residual capacity exists between the biweekly ten hours the claimant works and her capabilities, and there is a reasonable likelihood that, within her community, she could have found a job working 15 hours per week under her medical restrictions. Moreover, evidence that such a position does not exist would have aided her claim. However, the claimant did not even minimally attempt to market herself. There is 2 Claimant also sought temporary total disability benefits for February 21 through February 24, 1997, which was awarded by the commission. This finding has not been appealed by either party.
- 3 - absolutely no evidence of her registering with the Virginia Employment Commission or simply looking in the help-wanted section of the newspaper. We cannot find that the claimant has made a good faith effort to market her residual capacity within the tolerance of her physical ability.
II.
In order to receive benefits under a change-in-condition
application, claimant must prove that she made reasonable efforts
to market her residual wage earning capacity. See Virginia Int'l Terminals, Inc. v. Moore, 22 Va. App. 396, 401, 470 S.E.2d 574,
577 (1996). "What constitutes a reasonable marketing effort
depends upon the facts and circumstances of each case." Grief
Cos. (GENESCO) v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318
(1993). Where there is no conflict in the evidence, the question
of the sufficiency of the evidence is one of law. See CLC
Constr., Inc. v. Lopez, 20 Va. App. 258, 267, 456 S.E.2d 155, 159
(1995).
In National Linen Serv. 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 her remaining work capacity. These
include: (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
- 4 - 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.
Claimant argues that the commission erred in finding that
she did not make a "reasonable effort to secure suitable
employment within her physical limitations." Relying on our
decision in ARA Servs. v. Swift, 22 Va. App. 202, 468 S.E.2d 682 (1996), she contends that she was not required to further market
her residual capacity because she acted reasonably in accepting
the light-duty employment offered by her pre-injury employer. We
agree and reverse the commission's finding.
In ARA Servs., the commission found that the claimant
reasonably and adequately marketed her remaining residual
capacity because she accepted part-time light-duty employment
with her employer. See id. at 205, 468 S.E.2d at 683. On
appeal, the employer argued that the claimant was required to
look for full-time employment within her restrictions and that
"mere employment" was insufficient to sustain her burden in
proving that she marketed her residual capacity. Id. at 207, 468
S.E.2d at 684. Rejecting employer's argument, we held: [C]laimant returned to her pre-injury employment. When she was unable to perform the job because of the lifting involved, employer offered her light-duty employment. Claimant accepted in good faith the
- 5 - light-duty position offered by her pre-injury employer, and no evidence in the record shows that she was told to seek additional employment.
Id. (emphasis added).
Like the situation in ARA Servs., there was no evidence in
the instant case that claimant was told by employer to seek
additional employment. Instead, it was undisputed that claimant
could not return to her pre-injury employment and she accepted
the light-duty position offered by her employer, working every
other weekend, five hours per day. We hold that claimant met her
burden in proving that she reasonably and adequately marketed her
residual capacity by accepting in "good faith" the part-time
light-duty employment offered by her employer. See id.
Nevertheless, employer contends that ARA Servs. does not
control the outcome because in that case "there [was] no evidence
of record that the Claimant was working substantially less hours
than those which her treating physician had allowed her to work
in a light-duty capacity." However, contrary to employer's
argument, the claimant's treating physician in ARA Servs. placed lifting restrictions on her work ability, but did not restrict
her hours. See id. at 204-05, 468 S.E.2d at 683. Employer
argued that the claimant was required to look for "full-time"
employment, despite the fact that it had offered, and the
claimant had accepted, part-time light-duty work. Id. Thus,
there was evidence in that record that the claimant was working
in a lesser capacity than employer argued she could have worked.
- 6 - Similarly, in the instant case although claimant's
restrictions allowed her to work additional hours per week at a
light-duty position, employer offered her a light-duty position
with fewer hours. She cooperated with employer's efforts and
accepted that work with its time limitations in good faith.
Employer made no request that she seek additional work. For
these reasons, we reverse the decision of the commission.
Reversed.
- 7 -