COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Argued at Salem, Virginia
ARA SERVICES AND RELIANCE
INSURANCE COMPANY
v. Record No. 0412-95-3 OPINION BY
JUDGE JOHANNA L. FITZPATRICK
SHERRY L. SWIFT APRIL 2, 1996
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
John C. Johnson (Melissa Warner Scoggins;
Gentry, Locke, Rakes & Moore, on brief), for
appellants.
Rhonda L. Overstreet (Gary L. Lumsden, on
brief), for appellee.
In this workers' compensation case, ARA Services and its
insurer, Reliance Insurance Company (collectively referred to as
employer), appeal the commission's decision awarding benefits to
Sherry L. Swift (claimant). Employer argues that the commission
erred in: (1) finding that claimant reasonably and adequately
marketed her residual work capacity by accepting offered part-
time employment with employer, and (2) requiring employer to
provide claimant with a home exercise station. For the reasons
that follow, we affirm the commission's decision.
Claimant injured her left arm and shoulder on December 20,
1991, while working for employer as a route driver. Her job
involved lifting items weighing up to seventy-five pounds.
Employer accepted the claim as compensable and paid benefits from
January 29, 1992 to March 30, 1992.
Claimant returned to her pre-injury employment on March 30,
1992, with no restrictions. After a week or two, claimant was
unable to continue. Employer then reassigned claimant to light-
duty work as a vending machine attendant, a position that
involved less lifting. In her pre-injury employment, claimant
worked forty hours per week and earned $6.25 per hour. In the
light-duty position, claimant worked twenty-five hours per week
and earned $6.80 per hour.
In a December 10, 1992 report, Dr. Andrew J. Cepulo,
claimant's treating physician, stated: "The patient is to obtain
exercise equipment for home use. We reviewed some specific
muscles that need to be strengthened, and stretched . . . ." On
February 4, 1993, Dr. Cepulo again emphasized the importance of
claimant "increasing [the] frequency of stretching to deal with
acute exacerbations" of her work-related injury. Dr. Cepulo also
placed lifting restrictions on her work ability but did not
restrict her hours. In a November 8, 1993 report, Dr. Cepulo
continued the lifting restrictions, occasional lifting of over
fifty pounds and frequent lifting of thirty to forty pounds, but
again did not limit claimant's hours. Dr. Cepulo prescribed a
home exercise station "to allow upper [and] lower extremity home
strengthening program to reduce pain," and approved additional
treatment from Dr. Laura Liles, an osteopathic physician. Dr.
Liles prescribed a treadmill for claimant "to be able to walk
daily, regardless of weather, to work on chronic cervical
2
strain." Claimant purchased the home exercise station for
$208.99 and placed it in her home.
Claimant filed an application for change in condition by
letter on December 16, 1993, January 31, 1994, and June 7, 1994.
Claimant requested temporary partial disability benefits
beginning September 18, 1993; reimbursement for the home exercise
station prescribed by Dr. Cepulo; and provision of a treadmill as
prescribed by Dr. Liles. In awarding claimant benefits, the
commission found that: (1) claimant adequately marketed her
residual work capacity by accepting part-time employment offered
by employer because she would have been subject to termination if
she had refused the light-duty position; and (2) the home
exercise station was reasonable and necessary for claimant's
recovery. Her request for the treadmill was denied.
MARKETING OF RESIDUAL WORK CAPACITY
Employer argues that claimant did not reasonably and
adequately market her remaining residual capacity because she
accepted part-time light-duty employment offered by employer and
failed to obtain full-time employment elsewhere.
On appeal, this Court reviews "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 . . . [c]ommission 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
3
(1989).
A partially disabled employee "must make a reasonable effort
to market his remaining capacity to work in order to continue
receiving workers' compensation benefits." Virginia Wayside
Furn., Inc. v. Burnette, 17 Va. App. 74, 78, 435 S.E.2d 156, 159
(1993). "What constitutes a reasonable marketing effort depends
upon the facts and circumstances of each case." Greif Companies
(GENESCO) v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318
(1993). In National Linen Service 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 his or her remaining work
capacity:
(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
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. If an
injured employee unjustifiably refuses selective employment
offered by the employer, he or she is "no longer entitled to
4
receive disability compensation during the continuance of the
refusal." Virginia Wayside Furn., 17 Va. App. at 78, 435 S.E.2d
at 159; Code § 65.2-510(A). 1
In the instant case, claimant promptly returned to her pre-
injury employment but was physically unable to continue her
earlier duties. Employer then offered claimant a light-duty
position and reassigned her. The commission expressly found
that, "[i]f the claimant had refused this job, she would have
been subject to a termination of benefits for refusing suitable
employment." We agree and hold that, under the circumstances in
this case, claimant acted reasonably in accepting the part-time
light-duty employment offered by her pre-injury employer and
adequately marketed her residual work capacity.
Employer mistakenly relies on this Court's holding in
National Linen that mere employment is "insufficient proof of
making a reasonable effort to market one's remaining work
capacity." See 8 Va. App. at 268, 380 S.E.2d at 32. When the
claimant in National Linen was able to return to work, he did not
seek employment with his pre-injury employer, and his former
1
Code § 65.2-510(A) provides as follows:
If an injured employee refuses employment
procured for him suitable to his capacity, he
shall only be entitled to the benefits
provided for in §§ 65.2-503 and 65.2-603,
excluding vocational rehabilitation services
provided for in subdivision A 3 of §
65.2-603, during the continuance of such
refusal, unless in the opinion of the
Commission such refusal was justified.
5
employer did not offer him employment. The claimant accepted
employment with his father, not his pre-injury employer, and made
no efforts to seek employment elsewhere. Id. at 269, 380 S.E.2d
at 32.
In the instant case, claimant 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 light-duty position offered
by her pre-injury employer, and no evidence in the record shows
that she was told to seek additional employment. Under Code
§ 65.2-510(A), if claimant had refused the position, her right to
benefits could have been terminated. Under these circumstances,
credible evidence supports the commission's determination that
claimant reasonably and adequately marketed her residual work
capacity.
MEDICALLY NECESSARY HOME APPLIANCE
Employer next argues that the home exercise station was not
reasonable and necessary for claimant's recovery. Employer
denies responsibility for claimant's total body conditioning when
her work-related injury was a strained left arm.
Code § 65.2-603(A)(1) provides in pertinent part as follows:
[U]pon determination by the treating
physician and the Commission that the same is
medically necessary, the Commission may
require that the employer furnish and
maintain wheelchairs, bedside lifts,
adjustable beds, and modification of the
employee's principal home consisting of
ramps, handrails, or any appliances
prescribed by the treating physician and
6
doorway alterations.
(Emphasis added).
In this case, the commission found that the home exercise
station was reasonable and necessary. Dr. Cepulo, claimant's
treating physician, prescribed the exercise equipment "to allow
upper [and] lower extremity home strengthening program to reduce
[claimant's] pain" associated with her work-related injury. Dr.
Cepulo also emphasized the importance of claimant "increasing
[the] frequency of stretching to deal with acute exacerbations"
of her injury. Code § 65.2-603(A)(1) does not limit "appliances
prescribed by the treating physician" to those that constitute
structural modifications of a claimant's home and may include
medically necessary exercise equipment. Because credible
evidence in the record shows that the exercise equipment was
"medically necessary" for treatment of claimant's work-related
injury, the commission did not err in ordering employer to
reimburse claimant.
Accordingly, the decision of the commission is affirmed.
Affirmed.
7