ITT Teves Automotive v. Lorraine H. Johnson

• Court: Court of Appeals of Virginia
• Decided: October 21, 1997
• Docket: 0096974
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Fitzpatrick and Annunziata Argued at Alexandria, Virginia

ITT TEVES AUTOMOTIVE and PACIFIC EMPLOYER'S INSURANCE COMPANY MEMORANDUM OPINION * BY v. Record No. 0096-97-4 JUDGE ROSEMARIE ANNUNZIATA OCTOBER 21, 1997 LORRAINE HILDA JOHNSON

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION Douglas A. Seymour (Law Offices of Harold MacLaughlin, on brief), for appellants.

V.R. Shackelford, III (Shackleford, Honenberger, Thomas, Willis & Gregg, P.L.C., on brief), for appellee.

ITT Teves Automotive and Pacific Employer's Insurance

Company (appellants) appeal the decision of the full commission

awarding temporary total disability (TTD) compensation to

Lorraine H. Johnson (claimant). Specifically, appellants argue

that the credible evidence was insufficient to support the

commission's finding that the claimant made a reasonable effort

to market her remaining work capacity under the standards set

forth in National Linen Serv. v. McGuinn, 8 Va. App. 267, 380 S.E.2d 31 (1989). For the reasons which follow, we affirm.

The incident underlying the workers' compensation claim

occurred on March 5, 1992 when claimant developed a knot on her

left hand at work. The ganglion cyst which formed there was

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. surgically removed on March 25, 1992. Claimant continued to

experience persistent arm and hand pain after the surgery which

was diagnosed as reflex sympathetic dystrophy. On May 24, 1993

Dr. Victor C. Lee, her attending physician following the surgery,

declared her "totally disabled from all work duties."

Two years later, claimant returned to selective employment

and worked limited hours. The return to restricted work was

approved by Dr. Lee on April 10, 1995. Claimant received

temporary partial disability (TPD) compensation in addition to

her income upon a Supplemental Award entered on January 26, 1996.

She was able to work with her remaining capacities for nine

months until she was terminated in February 1996. Claimant

inspected rejected automotive brake parts to verify that they

were properly rejected by lifting the brake parts with her

functional hand, looking at the parts, and placing them in an

appropriate container. Dr. Lee's medical report dated February 20, 1996 and

testimony in his May 30, 1996 deposition described claimant's

restrictions as follows: "restricted use of the entire upper left

extremity to assisting only"; unable "to grasp, lif[t], or pull

with that hand"; and cannot "climb ladders or do any overhead

reaching because of two-handed requirement." He also notes that

the use of her right hand and arm was restricted to those

activities "which can be reasonably done with one hand and arm,"

with "frequent periods of alternating sitting and standing

2 positions," and she "cannot perform any activities which require

stooping or falling."

At appellants' request, Dr. Abraham A. Cherrick evaluated

claimant on December 13, 1995. In Dr. Cherrick's opinion,

claimant was capable of restricted full time work with limited

use of her left arm.

This matter came before the Virginia Workers' Compensation

Commission upon the application of ITT Teves, insurer, and

claimant. After she was terminated due to a lack of work,

claimant applied for reinstatement of TTD compensation on

February 26, 1996. Appellants filed on February 29, 1996 to

terminate her disability award. The deputy commissioner denied both applications and entered

a TPD award in favor of claimant, finding that: (1) claimant was

incapable of returning to her pre-injury work; (2) her current

disability was related to the March 5, 1992 work injury; (3) she

did not procure benefits by misrepresentation; (4) her request

for TTD was denied based on her failure to make reasonable effort

to market her residual work ability; (5) she was entitled to cost

of living increases; and (6) she was entitled to TPD at the

weekly rate of $93.62 from July 15, 1995 and continuing until

conditions justify a modification thereof.

On appeal by both parties, the full commission affirmed the

deputy commissioner's findings 1, 2, 3 and 5 and reversed

findings 4 and 6. Specifically, the commission found the

3 employee had made a reasonable effort to market her remaining

work capacity, and, therefore, awarded TTD compensation at the

weekly rate of $251.47 commencing on February 9, 1996.

A disabled employee is required to make a reasonable effort

to market her remaining work capacity in order to receive

workers' compensation benefits. See National Linen Serv. v.

McGuinn, 8 Va. App. 267, 269, 380 S.E.2d 31, 33 (1989); Great

Atlantic & Pacific Tea Co. v. Bateman, 4 Va. App. 459, 467, 359

S.E.2d 98, 102 (1987) ("The employee must . . . exercise

reasonable diligence in seeking employment and what is reasonable

in a given case will depend upon all of the facts and surrounding

circumstances."). On appeal, this Court must review "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 Industrial

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) (citing Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916

(1986)). Where, as in this case, there is "no conflict in the

evidence, 'the question of the sufficiency of the evidence is one

of law.'" CLC Constr., Inc. v. Lopez, 20 Va. App. 258, 267, 456

S.E.2d 155, 159 (1995) (quoting National Linen, 8 Va. App. at

270, 380 S.E.2d at 33).

To determine whether the claimant made a reasonable effort

4 commensurate with her abilities, the commission should consider

such factors as: (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 the 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.

National Linen, 8 Va. App. at 272, 380 S.E.2d at 34. "'The commission . . . determines which of these or other

factors are more or less significant with regard to the

particular case.'" Lynchburg Gen. Hosp. v. Spinazzolo, 22 Va.

App. 160, 168, 468 S.E.2d 146, 150 (1996) (quoting National

Linen, 8 Va. App. at 272-73, 380 S.E.2d at 34-35).

Appellants contend claimant's evidence relating to the

nature and extent of her job search and to her intent in

conducting the search was not credible and that the commission's

reliance on it was error. The evidence shows that, during the

ten months she searched for employment, claimant registered with

the Virginia Employment Commission (VEC), looked in the

newspaper, and asked a few individuals about working with abused

children and about some unidentified positions at the University

of Virginia. She presented no documentary evidence of her

enrollment with the VEC nor of her compliance with the VEC's

minimum weekly required job contact. The record does not show

what employment opportunities she found in the newspaper.

5 With respect to claimant's intent in conducting her search,

appellants argue that she placed unwarranted limitations on the

kind of work she would accept and unduly narrowed the job search

to work with children and work near her home. Noting that she

had worked for ITT Teves Automotive in Culpeper and travelled to

Charlottesville to receive medical treatment, appellants contend

that, viewed as a whole, the claimant's job search efforts do not

reflect a good faith effort to market her remaining work capacity

as required by Code § 65.2-510. Claimant argues her residual capacity to work is severely

limited by her physical condition and by the restrictions set by

Dr. Lee. She was limited to working with one arm and needed to

alternate frequently between periods of sitting and standing.

She also contends her training was limited. She was terminated

from employment at 48 years of age, and evidence of her work

experience discloses she had been employed as a waitress, a

worker assembling circuit breakers, a manufacturer of fire

extinguishers and an assembly line worker for employer since

1980. She completed the 11th grade and had no work training

other than the on-the-job training with ITT Teves Automotive.

Her work with employer was specialized, and her work skills and

experience were not readily transferable to other jobs. With

respect to the nature and extent of her job search, claimant

points to the evidence that she registered with the VEC, reviewed

help wanted ads, and made inquiries about jobs in Culpeper,

6 Fredericksburg and Charlottesville. She further notes that she

lives in an isolated, rural area with few job opportunities.

Finally, she argues that employer offered her no vocational

training or job placement services after she was laid off.

Under this Court's standard of review, we find the evidence

is sufficient to affirm the commission's credibility

determination that claimant, in fact, contacted employers in

search of employment and its finding that claimant made

reasonable efforts to market her residual capacity. Our review

of the evidence of claimant's job search, in the context of her

injury, her restrictions and her work experience, establishes

that the commission did not err in its decision and that its

award of total incapacity benefits from February 9, 1996, through

the time of the evidentiary hearing on May 10, 1996, must be

affirmed.