COURT OF APPEALS OF VIRGINIA
Present: Judges Haley, Petty and Powell
Argued at Salem, Virginia
CHARLES WRIGHT STRICKLAND, SR.
MEMORANDUM OPINION ∗ BY
v. Record No. 0682-08-3 JUDGE JAMES W. HALEY, JR.
FEBRUARY 17, 2009
JONES BROTHERS, INC. AND
ZURICH AMERICAN INSURANCE COMPANY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Philip B. Baker (G. Blair Sanzone; Sanzone & Baker, P.C., on brief),
for appellant.
Robert M. McAdam (Brooke Anne C. Hunter; Patrick S. Bolling;
Kalbaugh, Pfund & Messersmith, on brief) for appellees.
INTRODUCTION
Charles Wright Strickland, Sr. maintains the Workers’ Compensation Commission erred
in concluding he failed to market his residual work capacity. Finding the commission’s
conclusion supported by the evidence, we affirm.
FACTS
I.
Strickland, now aged 69, worked as a foreman/supervisor for Jones Brothers, Inc., which
installed gas, water, and sewer pipelines. He testified that in that position he “just told [the work
crews] what to do.” With respect to actual physical labor, he would “help them out a little bit”
by going to get a piece of equipment from the supply room, but “ninety-nine percent of the time I
had somebody help me.” He did no lifting other than this occasional loading or unloading of
∗
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
equipment. Primarily, he would “stand there two hours and look at” the crews working or he
would be “in my pickup truck riding . . . [or] sit there in my truck and look at them.” He
acknowledged his position required “a lot of paperwork.”
The parties stipulate that Strickland sustained an injury by accident to his lower back on
August 18, 2003. Prior to that date, though, Strickland had had “sharp pains in [his] back” which
required him “to be careful when I picked up anything.” Those pains, however, did not preclude
his performance as a foreman/supervisor.
Dr. Scot E. Reeg treated Strickland and released him to “light duty” on December 2,
2003, with restrictions against “lifting, bending, twisting, climbing, pushing or pulling” though
he could travel “45 minutes to an hour to any particular job site.” On February 16, 2004,
Dr. Reeg released Strickland to “his regular work.” He was discharged with a 3% permanent
partial disability rating to his back. Strickland requested a second opinion and was seen by
Dr. David C. Miller on September 1, 2004, who concluded that Strickland “at this time can only
do sedentary work” and opined there was a 5% disability rating. Since April 2005, Dr. Thurman
Whitted, Jr. has treated Strickland for relief of pain. In response to an April 20, 2006
questionnaire, Dr. Whitted stated that, although he had not prior thereto suggested any work
restrictions, he “recommended” Strickland could be restricted as follows: “no prolonged
bending, stooping, squatting, and no lifting greater than 25 lbs.” By deposition of January 4,
2007, Dr. Whitted opined those restrictions were “reasonable.” He further stated he had no
restrictions on Strickland driving, but suggested Strickland not remain seated without a break for
longer than 30 to 60 minutes.
The parties stipulated that Strickland has been restricted to light duty since September 1,
2004. That stipulation reflects the restrictions suggested by both Dr. Reeg (initially) and
Dr. Miller, and “recommended” by Dr. Whitted in 2006 and deemed “reasonable” by him in
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2007. As noted above, Strickland has a 3-5% permanent partial disability rating for his back.
During a deposition on November 3, 2006, Strickland acknowledged he has never received any
disability rating as to his legs.
Strickland is diabetic and wears an insulin pump. At Dr. Whitted’s recommendation,
Strickland takes various medications, including Neurontin, Percocet, and Endocet, for pain in his
legs. At night he also uses a TENS unit. He receives Social Security but is not on disability
Social Security.
The issue as to whether Strickland had made reasonable efforts to market his residual
work capacity has been divided by the parties into two discrete time frames: first, from
September 1, 2004, to November 3, 2006, when Strickland’s deposition was taken, and second,
from November 3, 2006, to January 18, 2007, when the hearing was held before a deputy
commissioner.
II.
Strickland lives in Snow Hill, North Carolina. Within a 30 to 45 minute drive are the
towns of Goldsboro, Greenville, and Kinston. Raleigh is an hour and one-half away. Strickland
completed the eighth grade, can read and write, obtained his GED in 1959, and possesses a valid
driver’s license. He worked on a farm until age sixteen, and spent four years in the military. He
described his activities in the military as “classified” and declined to reveal their nature. He has
worked in construction for fifty years. He has also owned and cared for horses for almost fifty
years, and presently maintains seven or eight at his small farm. As noted, he last worked as
supervisor/foreman with the duties and responsibilities outlined above. For twenty-six weeks,
from April 2004 onwards, he collected unemployment compensation from Virginia.
Between February 2004 and November 3, 2006, the date of his deposition, Strickland
testified he had had twelve interviews. He presented two lists with the names of twenty-eight
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companies (though a substantial number of the names were duplicated) he said he contacted
either in person or by phone. The list does not contain dates, times, telephone numbers,
addresses, or potential work available, as to any company. Strickland acknowledged that four
companies were contacted “this week,” that is, during the week preceding his deposition. He
admitted that all companies named were construction companies (“That’s all I’ve ever done”)
and that he would contact them without knowing whether they had any job openings. He
acknowledged that he could drive for one-half hour without stopping, and drives to meet a friend
at a restaurant in Kinston, N.C., thirteen miles from Snow Hill, once a week. He stated he had
been offered jobs, but “[w]hen they find out I got back problems the interview is almost over
right there.” No evidence was offered that he had applied anywhere for any work consistent with
the restrictions to which the stipulation applied.
Strickland next testified at the hearing before the deputy commissioner on January 18,
2007. He introduced into evidence four handwritten lists on employee contacts containing
thrity-six firms. Again, no documentation or notes concerning those contacts were set forth on
the list. Moreover, at least fifteen of those so named were the same as those listed during the
November 3, 2006 deposition. (“There’s nothing much different . . . some . . . on that . . . list is a
repeat of people I contact[ed].”)
He has not seen any doctor except Dr. Whitted since April 2005 and acknowledged that
this physician imposed no formal restrictions. He admitted he has “the people skills and the
knowledge . . . to do supervisory roles and explain to people how to do the job.” He did not, in
response to a question, apply for work at any trade school. Again, with several exceptions, the
vast majority of his contacts were going to construction job sites or having conversations with
individuals he knows in the construction industry.
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As he related: “I . . . tell them . . . I have back problems and stuff and everything, so---
they said that kind of shuts the door.” He tells them: “I wasn’t supposed to pick up anything
heavy or stoop or bend a whole lot or stand a whole lot.” He has not registered with the Virginia
Employment Commission since his unemployment benefits ran out.
The following exchange during the hearing before the deputy commissioner crystallizes
that testimony and the testimony at the earlier deposition.
Q. [O]nce you get into the interview and start talking to them
about your restrictions and they talk to you about the job duties,
you’ve never been on an interview where they actually meet up,
are compatible, isn’t that correct?
A. That’s right. Yes.
III.
The May 3, 2007 decision by the deputy commissioner included the following
evaluation: “Careful observation and attention to Strickland’s behavior, conduct, and
capabilities as a witness clearly revealed language and reasoning skills far above the level of
someone who, as a regular student, never reached high school.”
The deputy wrote: Strickland “sought employment only at construction or related firms
where there was little, if any, chance of his employment.” Even though his “physical work
requirements [as a foreman/supervisor] were minimal . . . according to his testimony, each of the
firms he contacted backed away from any employment offer after he advised them of his
‘restrictions.’” Moreover, “Strickland stated that he had been offered jobs until he disclosed his
limitations. However, he did not identify either the positions allegedly offered or the firms
themselves.” The deputy further noted that: “There is also no evidence that other jobs [besides
construction] were not available.”
In finding that Strickland had not met his burden of establishing that he had made
reasonable efforts to market his residual work capacity since September 1, 2004, to date, the
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deputy wrote: “the hard evidence is that he applied only for positions he, himself, thought he
could not perform.”
Strickland appealed to the full commission. By decision of February 19, 2008, the
commission affirmed the deputy, with one commissioner dissenting. Relying on White v.
Redman Corp., 41 Va. App. 287, 584 S.E.2d 462 (2003), and National Linen Service v.
McGuinn, 8 Va. App. 267, 380 S.E.2d 31 (1989), among others, in its analysis, the majority
wrote:
However, after careful Review, it appears that the
claimant’s restrictions, or what claimant thought his restrictions
were, were not documented by his treating physician.
* * * * * * *
[H]e is able to work in a sedentary job. The description of his
pre-injury job is essentially sedentary. . . . [His job search] lacked
documentation . . . and his testimony . . . showed he failed to
market outside his experience adequately and that he did not
explore other options.
The commission summarized: “His search was self-limited to certain employers that he
contacted repeatedly without success.”
ANALYSIS
“A partially incapacitated employee . . . is not entitled to temporary total disability
benefits unless he has made a reasonable effort to market his remaining capacity for work.”
White, 41 Va. App. at 292, 584 S.E.2d at 464. “[T]he employee ‘[has] the burden of proving
that he [has] made a reasonable effort to procure suitable work but [is] unable to market his
remaining work capacity.’” Ford Motor Co. v. Favinger, 275 Va. 83, 89, 654 S.E.2d 575, 578
(2008) (quoting Wash. Metro. Area Transit Auth. v. Harrison, 228 Va. 598, 601, 324 S.E.2d
654, 656 (1985)).
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What constitutes a “reasonable effort” in this context must be determined by
consideration of “all of the facts and surrounding circumstances” applicable to each individual
case. Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 467, 359 S.E.2d 98, 102 (1987).
This Court has enumerated the following factors for that consideration:
(1) the nature and extent of [the] employee’s disability; (2) the
employee’s training, age, experience, and education; (3) the nature
and extent of [the] employee’s job search; (4) the employee’s
intent in conducting his job search; (5) the availability of jobs in
the area suitable for the employee, considering his disability; and
(6) any other matter affecting [the] employee’s capacity to find
suitable employment.
Nat’l Linen Serv., 8 Va. App. at 272, 380 S.E.2d at 34. These criteria remain relevant for
analytical purposes. See Va. Natural Gas, Inc. v. Tennessee, 50 Va. App. 270, 282-85, 649
S.E.2d 206, 213-14 (2007); Metro. Wash. Airports v. Lusby, 41 Va. App. 300, 316-17, 585
S.E.2d 318, 326 (2003).
‘“The determination of whether a partially disabled employee has adequately marketed
his residual work capacity lies within the fact-finding judgment of the commission, and its
decision on that question, if supported by credible evidence, will not be disturbed on appeal.’”
Va. Natural Gas, Inc., 50 Va. App. at 283, 649 S.E.2d at 213 (quoting Wall Street Deli, Inc. v.
O’Brien, 32 Va. App. 217, 220-21, 527 S.E.2d 451, 453 (2000)). See also Ford Motor Co., 275
Va. at 88, 654 S.E.2d at 578.
A decision by the commission is “conclusive and binding as to all questions of fact.”
Code § 65.2-706(A); see also Bass v. City of Richmond Police Dep’t, 258 Va. 103, 114, 515
S.E.2d 557, 563 (1999). Thus, under our standard of review, ‘“[f]actual findings by the
commission that are supported by credible evidence are conclusive and binding upon this Court
on appeal.’” Nurses 4 You, Inc. v. Ferris, 49 Va. App. 332, 339, 641 S.E.2d 129, 132 (2007)
(quoting S. Iron Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34 (1993)). In
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addition, “[w]here reasonable inferences may be drawn from the evidence in support of the
commission’s factual findings, they will not be disturbed by this Court.” Hawks v. Henrico
County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988). “In determining whether
credible evidence exists to support the commission’s findings of fact, ‘[we do] not retry the facts,
reweigh . . . the evidence, or make [our] determination of the credibility of the witnesses.’” Tex
Tech Indus., Inc. v. Ellis, 44 Va. App. 497, 504, 605 S.E.2d 759, 762 (2004) (quoting Wagner
Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991)). Finally, in reviewing a
decision by the commission, we view the evidence in the light most favorable to the prevailing
party below, here the employer, Jones Brothers, Inc. Wainwright v. Newport News Shipbuilding
& Dry Dock Co., 50 Va. App. 421, 430, 650 S.E.2d 566, 571 (2007).
We address three of the factors set forth in National Linen Serv. First, the extent of
claimant’s disability was self-defined, as his testimony reveals. While it is true Dr. Reeg,
initially, and Dr. Miller, subsequently, limited claimant to “light duty” or “sedentary work,” the
commission nonetheless found that “claimant’s restrictions . . . were not documented by his
treating physician,” Dr.Whitted. He had not visited any physician but Dr. Whitted since April
2005. Second, as the commission noted, his job search, as set forth on claimant’s notes, “lacked
documentation” — being simply the names of construction companies, often repeated. Third, in
National Linen Serv., we adopted language from Dunkin Donuts of America, Inc. v. Watson, 366
A.2d 1121 (Me. 1976) wherein the Supreme Court of Maine held that the employee must engage
“in a good faith effort to obtain work.” 8 Va. App. at 271, 380 S.E.2d at 34. Here, the evidence
demonstrates a lack of good faith effort. The claimant would approach construction companies
and advise them of his “restrictions.” As claimant acknowledged, he never had an interview
where the job duties were compatible with his “restrictions.” As the deputy commissioner wrote:
“the hard evidence is that he applied for positions he, himself, thought he could not perform.”
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Applying the standard of review set forth above, we conclude that the evidence supports
the fact found by the commission — that claimant failed to show he made a reasonable effort to
market his remaining work capacity. Accordingly, the decision of the commission is affirmed.
Affirmed.
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