COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Argued at Roanoke, Virginia
LYNCHBURG GENERAL HOSPITAL
v. Record No. 0343-95-3 OPINION BY
JUDGE JOHANNA L. FITZPATRICK
ANTONIA SPINAZZOLO MARCH 26, 1996
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Christine Smith (Bernard C. Baldwin, III;
James O. Watts, IV; Edmunds & Williams, P.C.,
on brief), for appellant.
Robert E. Evans for appellee.
In this workers' compensation case, Lynchburg General
Hospital (employer) appeals the commission's decision awarding
benefits to Antonia Spinazzolo (claimant). Employer argues that
the commission erred in: (1) awarding claimant compensation when
she was recovering from surgery for an unrelated condition; (2)
finding that claimant's work release was qualified by her
treating physician; and (3) finding that claimant did not remove
herself from the labor market by attending nursing school full
time. For the reasons that follow, we affirm the commission.
BACKGROUND
Beginning in October 1988, claimant worked for employer as a
phlebotomy technician during the second shift from 3:00 p.m. to
11:30 p.m. On August 31, 1992, she injured her right wrist, and
employer accepted this injury as compensable. Prior to her
injury, claimant enrolled as a nursing student at the hospital,
and employer voluntarily worked with her to schedule her work
hours around her classes. Until she was injured, claimant had
planned to work full time during her first year of nursing
school, thirty-two hours per week during her second year, and
fewer hours during her third year. Claimant began nursing school
as a full-time student in August 1993.
From the date of the accident until September 1993, employer
provided claimant continuous light-duty work as a charter, 1
excluding the periods from September 30 to October 15, 1992, and
April 22 to June 20, 1993, when she remained totally disabled.
In September 1993, claimant returned to her regular employment
for two weeks, but again suffered pain and swelling in her hand.
When claimant was unable to perform her pre-injury job, her
treating physician, Dr. James C. Dunstan, Jr., placed her on
restricted duty. Employer again provided her light-duty work as
a charter. While claimant was working as a charter, the hospital
engaged in "creative scheduling" to coordinate claimant's work
and school hours. On December 21, 1993, Dr. Dunstan reported
that claimant would have "to give up her Phlebotomist job for a
variety of reasons, but I think they all involve the weakness in
her right hand and wrist. . . . [S]he's never going to have a
normal wrist and the dexterity required of this particular job."
Employer eliminated the charter position in December 1993 when
1
Claimant testified that a charter's responsibilities included
making copies of test results, taking the copies to the floor, and
noting the results on the patient charts.
2
it began sending the test results to each floor through the
hospital computer system. Claimant did not work from December
1993 to March 1994 because employer had no light-duty jobs
available.
After termination by employer, claimant cooperated with the
vocational rehabilitation counselor provided by employer and met
with him on January 29, 1994, February 18, 1994, and February 23,
1994. Claimant complied with all of the counselor's requests and
submitted several employment applications. In March 1994,
claimant began working at NTS Marketing, Inc. (NTS), a job she
obtained through the Virginia Employment Commission (VEC). NTS
offered claimant full-time employment from 9:00 a.m. to 5:30
p.m., but she refused it and worked part time in the late
afternoons and evenings so that she could continue her education.
She also had a baby-sitting job from March 1994 to May 1994 and
worked for a sitter/companion agency. Claimant sought jobs that
would not conflict with her nursing school classes and, at times,
worked two jobs. In August 1994, claimant applied for a courier
job with employer, a job that required full-time hours from 10:00
a.m. to 7:00 p.m. Employer never offered claimant the job
because of the potential conflict with her educational plan, but
attempted to find someone to split the hours with her.
On May 31, 1994, Dr. Dunstan noted that claimant could
attempt work as a phlebotomist on a trial basis, and he
reiterated this "work trial" release on July 15, 1994 and August
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4, 1994. However, claimant underwent surgery in June 1994 for an
unrelated problem and was unable to work from June 8, 1994 to
July 15, 1994. In his August 25, 1994 deposition, Dr. Dunstan
stated that claimant should be able to perform most tasks
required of a phlebotomist, but qualified his response: "I would
feel she's definitely able to try this job. . . . If she can do
it, great; if the pain is too limiting to her, then I would have
to say she couldn't, but I think she's definitely able to try
it." (Emphasis added). During the deposition, Dr. Dunstan noted
claimant's potential problems in performing her pre-injury
employment, such as range of motion limitations and difficulty in
locating her hand when drawing blood.
Claimant filed an application for benefits beginning April
4, 1994 and continuing. During her deposition, claimant
testified that, at all times, she has been available to work the
second shift from 3:00 p.m. to 11:30 p.m., the shift she worked
prior to her accident. Claimant is willing to try her pre-injury
employment as a phlebotomist, but employer has not offered her
the opportunity.
In awarding claimant benefits, the commission found that:
(1) regardless of the unrelated surgery in June 1994, claimant
would have remained disabled from her pre-injury employment from
June 8, 1994 to July 15, 1994; (2) Dr. Dunstan merely released
claimant to perform her pre-injury employment on a "work trial"
basis; and (3) although claimant is a full-time nursing student,
4
under the facts of this case, she did not remove herself from the
labor market.
5
COMPENSATION DURING RECOVERY FOR UNRELATED CONDITION
Employer argues that the commission erred in finding that
claimant was entitled to compensation during the period in which
she was recovering from surgery for a condition unrelated to her
industrial accident.
On appeal, "we 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 . . . [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
(1989).
The commission determined that, "[r]egardless of [her] other
conditions, the employee would have remained disabled as a result
of the industrial accident for the period claimed." Credible
evidence supports this finding. During the period in dispute,
claimant had not been released to return to her pre-injury
employment. Although claimant's surgery produced a concurrent
disability, the evidence established that she had not fully
recovered from her compensable injury. The dates of claimant's
recovery period for the intervening injury were June 8, 1994 to
July 15, 1994, a period prior to Dr. Dunstan's release of
claimant to her pre-injury employment on August 4, 1994. Thus,
the commission did not err in holding employer responsible for
compensation during the disputed period.
6
WORK RELEASE
Employer next contends that the commission erred in finding
that claimant's work release was qualified by her treating
physician.
In addressing the work release issue, the commission found
that, "[a]lthough Dr. Dunstan indicated that the employee could
attempt her pre-injury employment on several occasions, there is
no absolute release to full duty in the record." Credible
evidence supports the commission's finding that Dr. Dunstan did
not give claimant an unqualified release to return to her pre-
injury employment. In December 1993, Dr. Dunstan indicated that
claimant's wrist would never again have the dexterity required of
a phlebotomist. During three separate visits from May to August
1994, he told claimant she could attempt her pre-injury
employment on a "work trial" basis. Additionally, Dr. Dunstan
noted several potential limitations that claimant might encounter
in attempting her pre-injury employment, including performing
tasks that require a complete range of motion and locating her
hand when drawing blood. Under these facts, the commission did
not err in finding that Dr. Dunstan qualified claimant's work
release.
FAILURE TO MARKET REMAINING WORK CAPACITY
Lastly, employer argues that the commission erred in finding
that claimant did not effectively remove herself from the labor
market by limiting her job search to second-shift work because of
7
her status as a full-time student.
"In order to continue to receive benefits under the Workers'
Compensation Act, a claimant who has been injured in a
job-related accident must market [her] remaining capacity to
work." Herbert Bros. v. Jenkins, 14 Va. App. 715, 717, 419
S.E.2d 283, 284 (1992). "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).
[I]n deciding whether a partially disabled
employee has made reasonable effort to find
suitable employment 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 [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.
National Linen Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d
31, 34 (1989) (footnotes omitted). "The commission . . .
determines which of these or other factors are more or less
significant with regard to the particular case." Id. at 272-73,
380 S.E.2d at 34-35.
In examining a claimant's "intent in conducting [her] job
search," the commission must decide "whether it was evident from
the employee's conduct that [s]he was acting in good faith in
seeking suitable employment." Id. at 272 n.3, 380 S.E.2d at 34
8
n.3. "Other factors that the commission should consider include
whether the employee voluntarily removed [her]self from the job
market, 2 whether the employee unreasonably restricted the
geographic area of [her] search, and whether . . . she is capable
of being retrained." Id. at 272 n.5, 380 S.E.2d at 34 n.5
(emphasis added) (citation omitted). Similarly, another factor
that the commission should consider is whether the employee
unreasonably restricted her job search by imposing a time
limitation, as in the instant case.
"Upon judicial review of the commission's finding that a
claimant has made a reasonable marketing effort, the Court must
view the evidence in the light most favorable to the prevailing
party. However, where, as here, there is no conflict in the
evidence as to the relevant factors, the question of sufficiency
is one of law." Sipe, 16 Va. App. at 716, 434 S.E.2d at 318
(citation omitted).
Under the circumstances existing in this case, we cannot say
2
Whether a claimant has voluntarily removed herself from a
portion of the labor market is only one factor that the commission
must consider in determining whether a claimant has reasonably
marketed her residual capacity. A claimant voluntarily removes
herself from the labor market if he or she "has the physical
capacity for employment at the time of the removal." Baskerville
v. Saunders Oil Co., 1 Va. App. 188, 192, 336 S.E.2d 512, 514
(1985). However, the commission has held that "mere status as a
full time student does not, by itself, establish the employee
cannot actively participate in vocational rehabilitation."
Helmick v. Rubbermaid Commercial Prods., Inc., 71 O.I.C. 284, 285
(1992). "[A]t a minimum, there must be some showing that the
employee's status as a full time student interfered with the
vocational rehabilitation efforts." Id.
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as a matter of law that the commission erred in finding that
claimant adequately marketed her residual capacity and did not
remove herself from the labor market by continuing to attend
nursing school while attempting to work. The commission
specifically found as follows:
[C]laimant cooperated with vocational
rehabilitation efforts, obtained employment,
attempted to return to her pre-injury
employment, and worked while attending
nursing school full-time. [She] is also
willing to attempt her pre-injury employment
again and is available to work full-time
hours. These hours are also identical to
those required by her pre-injury employment
since 1988. Under these circumstances, we
find that the employee has not removed
herself from the labor market and is entitled
to compensation.
In making these findings, the commission implicitly determined
that claimant reasonably marketed her remaining work capacity.
The commission must weigh the McGuinn factors in determining
whether an employee has adequately marketed his or her remaining
capacity to work, and this determination depends upon the facts
in each case. One factor may provide greater support for the
commission's decision than another based on the overall
circumstances in each case. In the instant case, the evidence
established that: (1) after her accident, claimant accepted
light-duty employment with employer as a charter and worked at
the hospital until the charter position was eliminated in
December 1993; (2) claimant cooperated fully with the vocational
rehabilitation counselor provided by employer by meeting with the
10
counselor three times, submitting several employment
applications, and complying with all of the counselor's requests;
(3) claimant registered with the VEC and obtained part-time
employment at NTS; (4) claimant also worked as a baby-sitter and
as a companion, often working two jobs while attending school
full time; (5) in August 1994, claimant applied for the courier
position at the hospital; (6) employer never offered the courier
position to claimant but tried to find someone to split the hours
with claimant; (7) before her accident, claimant enrolled as a
nursing student and employer engaged in "creative scheduling" to
tailor claimant's work hours to her school hours; (8) since
October 1988, claimant had worked the second shift from 3:00 p.m.
to 11:30 p.m. and, after the accident, claimant was available for
second-shift work at all times; and (9) claimant is willing to
attempt her pre-injury employment.
Although similar time restrictions on a job search might
under other circumstances be unreasonable, credible evidence
supports the commission's finding that claimant's limitation of
her search to second-shift positions was reasonable in light of
her extensive marketing efforts and the history between the
parties. Employer essentially lulled claimant into believing
that she was not required to find additional full-time
employment. Employer coordinated her school hours and work hours
before and after her accident by providing claimant with second-
shift employment. When claimant applied for the courier position
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in August 1994, employer did not offer the position to claimant,
but instead searched for someone to share the hours with her so
that her work would not conflict with her education. 3 Thus, both
her employment history with the hospital as a second-shift
employee and employer's affirmative endorsement of claimant's
work and school schedule before and after her accident support
the commission's finding that claimant reasonably marketed her
remaining work capacity and did not remove herself from the labor
market by attending school full time.
Accordingly, the decision of the commission is affirmed.
Affirmed.
3
If employer had offered the courier job to claimant, she would
have been required to accept it to continue receiving benefits.
12