Allen v. Southern Commercial Repair, Inc.

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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