COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Frank and Senior Judge Bray
Argued at Chesapeake, Virginia
MARK S. ALLEN
OPINION BY
v. Record No. 1758-02-1 JUDGE ROSEMARIE ANNUNZIATA
MARCH 25, 2003
SOUTHERN COMMERCIAL REPAIR, INC. AND
SELECTIVE INSURANCE COMPANY OF AMERICA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Matthew H. Kraft (Inman & Stickler, P.L.C.,
on brief), for appellant.
(Robert G. Harrington; Robert Harrington &
Associates, on brief), for appellees.
Appellees submitting on brief.
Mark S. Allen, appellant, appeals the decision of the
Workers' Compensation Commission, which found that he was not
entitled to temporary partial disability benefits because he
failed to reasonably market his residual wage earning capacity.
For the reasons that follow, we affirm.
The material facts underlying this appeal are not in
dispute. Allen suffered an injury by accident on March 23, 1999
while employed by Southern Commercial Repair, Inc. ("Southern"),
where he worked as an electrician. His job required him to lift
heavy items, climb ladders and scaffolding, run conduit wire,
and perform additional tasks associated with general contracting
electrical work. Allen has been employed in the electrical
business since approximately age 16; he is a master electrician,
has his General Equivalency Degree and holds contractor and
tradesmen licenses.
On July 31, 2000, the commission determined that Allen had
established a compensable injury by accident and awarded him
disability benefits through June 7, 1999. After the commission
awarded benefits, Allen was terminated from his position with
Southern, ostensibly due to the limitations imposed by his
injury.
Following his termination, Allen worked for two other
employers, but was laid off by each. He stated that his
inability to physically perform the work was the basis for the
lay-offs. Thereafter, Allen started a new company, Allen's
Electric Service of Virginia, Inc. He has operated the company
on a continuing basis since March 28, 2000. The company
provides electrical services and repair. After Allen started
his own company, he ended his attempts to seek employment
elsewhere.
Allen made a concerted effort to establish a viable
electrical services company. He placed a listing in the local
yellow pages and created a flier and business cards for
advertising purposes. He submitted 173 job proposals to
prospective clients from approximately March 21, 2000 through
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April 25, 2001. 1 A review of the proposals reveals that the jobs
at issue ranged extensively in size and complexity and took
varying amounts of time to perform. However, as of September
13, 2000, Allen was restricted to a 25-pound lifting limitation
and was prohibited from engaging in heavy pulling and carrying.
On October 2, 2000, his physician characterized his limitations
as "permanent," stating in his report that "[Allen] is going to
need to be on permanent restrictions as far as bending and
lifting are concerned. He should not do any heavy labor type
work . . . ." The restrictions precluded proposals for certain
electrical services jobs and made it necessary to pay other
individuals to perform the more physically taxing jobs that
Allen could no longer perform.
Allen's tax records indicate that, from March 28, 2000 to
December 31, 2000, his company earned $29,777 in gross receipts.
1
The job proposals are broken into four periods, March 21,
2000 through August 4, 2000, August 8, 2000 through October 19,
2000, October 20, 2000 through January 19, 2001, and January 5,
2001 through Apri1 25, 2001. For the first period, comprised of
19.57 weeks, 46 proposals were submitted (26 of which were
marked "paid," 7 of which were marked "didn't get," and 13 of
which were unmarked). For the second period, comprised of 10.43
weeks, 47 proposals were submitted (23 of which were marked
"paid," 19 of which were marked "didn't get," and 5 of which
were unmarked). For the third period, comprised of 13.14 weeks,
47 proposals were submitted (16 of which were marked "paid," 17
of which were marked "didn't get," and 14 of which were
unmarked). For the last period, comprised of 13 weeks, 73
proposals were submitted (24 of which were marked "paid," 26 of
which were marked "didn't get," and 23 of which were unmarked).
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Allen's profit from these receipts was $9,025, an average weekly
wage of $226.42.
Due to his physical limitations, Allen filed a Change of
Condition Application on October 5, 2000, for "temporary total
and/or temporary partial disability benefits beginning September
13, 2000 and continuing." 2
Analysis
Allen's contention that there is no credible evidence to
support the commission's determination that he failed to market
his residual wage earning capacity is not supported by the
record. Under the Workers' Compensation Act, a disabled
employee who seeks an award for temporary partial disability
benefits has the burden of proving that he made a reasonable
effort to market his remaining work capacity in order to receive
continued benefits. See Virginia Int'l Terminals v. Moore, 22
Va. App. 396, 401, 470 S.E.2d 574, 577 (1996); see also Holly
Farms Foods Inc. v. Carter, 15 Va. App. 29, 42, 422 S.E.2d 165,
172 (1992); National Linen Serv. v. McGuinn, 8 Va. App. 267,
269, 380 S.E.2d 31, 33 (1989); Great Atl. & Pac. Tea Co. v.
Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 100 (1987). "What
constitutes a reasonable marketing effort depends on the facts
2
The initial benefits awarded to Allen by the commission
included temporary partial disability benefits through June 7,
1999.
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and circumstances of each case." Greif Companies v. Sipe, 16
Va. App. 709, 715, 434 S.E.2d 314, 318 (1993).
When evaluating the reasonableness of a claimant's efforts
to market his residual wage earning capacity, the commission may
consider the following factors: 1) the nature and extent of
claimant's disability, 2) claimant's training, age, experience,
and education, 3) the nature and extent of claimant's job
search, 4) claimant's intent in conducting his job search, 5)
the availability of jobs in the area suitable for claimant,
considering his disability, and 6) any other matter affecting
claimant's capacity to find suitable employment. McGuinn, 8
Va. App. at 277, 380 S.E.2d at 34. "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." Wall Street Deli, Inc. v. O'Brien, 32 Va. App. 217,
220-21, 527 S.E.2d 451, 453 (2000) (citing Ford Motor Company v.
Hunt, 26 Va. App. 231, 239, 494 S.E.2d 152, 156 (1997)).
Furthermore, k"[t]he commission . . . determines which of [the
relevant] factors are more or less significant . . . ."
McGuinn, 8 Va. App. at 272-73, 380 S.E.2d at 34-35.
On appeal, we view the evidence in the light most favorable
to Southern, the prevailing party before the commission. Id. at
270, 380 S.E.2d at 33; see also Allen & Rocks Inc. v. Briggs, 28
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Va. App. 662, 672, 508 S.E.2d 335, 340 (1998) (citations
omitted). So viewed, we find that the record fully supports the
commission's finding that Allen failed to make reasonable
efforts to market his residual capacity. Allen is a master
electrician, has his tradesmen and contractor licenses, earned
his GED and has taken courses in business administration and
computer science. Notwithstanding these qualifications, he only
sought and obtained work with two different employers from March
24, l999, the date of the injury, until March 21, 2000. He left
each position after short periods, stating his physical
limitations led to his being "laid off."
Allen thereafter made no effort to find employment with
other potential employers. He did not fill out any job
applications, and he did not consult newspaper classified
advertisements. He did not contact potential employers or
produce a list of such contacts, nor did he register with the
Virginia Employment Commission ("VEC") or utilize its services.
See McGuinn, 8 Va. App. at 272, 380 S.E.2d at 35 (finding a
claimant should register with the VEC, use classified
advertisements and submit lists of contacts/jobs applied for).
Instead of seeking employment within his residual wage earning
capacity, Allen became self-employed by establishing his own
electrical contracting business.
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Allen's efforts to market his residual wage earning
capacity were thus manifestly limited, at best. With this
limited history of marketing his residual capacity, Allen
elected to start his own business. Not only was the venture one
in which he had no prior experience, his physical restrictions
limited both the business opportunities available to him and his
ability to perform some of the contracts for service he
obtained. Indeed, he had to hire others to perform certain
tasks that his physical limitations precluded. Allen's business
yielded him approximately half of his pre-injury average weekly
wage.
The record does not support Allen's contentions that, in
determining that he failed to reasonably market his residual
capacity, the commission failed to consider the nature of his
injury and the consequent physical limitations it imposed. The
commission characterized as "equivocal at best" Allen's
testimony that he was fired by Southern because the injuries he
sustained curtailed his ability to perform the job and that he
was laid off from two subsequent positions because of his injury
and the resulting physical limitations he suffered.
Furthermore, neither the medical documentation nor the nature of
his limitations necessarily leads to the conclusion that Allen
urges. In short, the evidence fails to show that
self-employment was Allen's only remaining employment option or
that he could not successfully obtain employment with other
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contractors that more fully reflect his residual earning
capacity.
Allen further contends that the commission has erroneously
and improperly established a presumption that self-employment
cannot, as a matter of law, constitute a reasonable effort to
market a claimant's residual wage earning capacity and that its
decision rests on that presumption. We disagree that the
commission's decision is based on such a presumption. Rather,
it reflects a consideration of all the relevant factors
established by McGuinn and our decisions in its progeny, as well
as all the facts and circumstances established by the evidence
in the case. The weight the commission determined to accord the
relevant factors, including Allen's efforts to establish his own
business, is within its unique domain as trier of fact.
McGuinn, 8 Va. App. at 273, 380 S.E.2d at 34-35. This Court
will not substitute its judgment on such matters of discretion
for that of the commission. See O'Brien, 32 Va. App. at 221-22,
527 S.E.2d at 453.
For the reasons stated, we affirm the decision of the
commission.
Affirmed.
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