COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
JONATHAN L. LIPSCOMB
MEMORANDUM OPINION*
v. Record No. 2473-01-3 PER CURIAM
FEBRUARY 12, 2002
QUALITY FOODS COOPERATIVE, INC. AND
SELECTIVE INSURANCE COMPANY OF
THE SOUTHEAST
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Craig P. Tiller; Davidson, Sakolosky,
Moseley & Tiller, P.C., on brief), for
appellant.
(W. Christopher Wickham; Robert Harrington &
Associates, on brief), for appellees.
Jonathan L. Lipscomb (claimant) contends the Workers'
Compensation Commission (commission) erred in denying him an
award of temporary total disability benefits on the ground that
he failed to adequately market his residual work capacity
beginning November 17, 2000. Upon reviewing the record and the
parties' briefs, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision.
Rule 5A:27.
A partially disabled employee is required to make
reasonable efforts to market his residual earning capacity to be
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
entitled to receive continued benefits. See National Linen
Serv. v. McGuinn, 8 Va. App. 267, 269, 380 S.E.2d 31, 33 (1989).
"In determining whether a claimant has made a reasonable effort
to market his remaining work capacity, we view the evidence in
the light most favorable to . . . the prevailing party before
the commission." Id. at 270, 380 S.E.2d at 33. "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).
Unless we can say as a matter of law that claimant's
evidence sustained his burden of proof, the commission's
findings are binding and conclusive upon us. See Tomko v.
Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835
(1970).
On November 17, 2000, Dr. William E. Albers, an
orthopedist, released claimant to light-duty work, consisting of
"sit down work with [right] hand dominant work, . . . [changing]
positions when necessary." Claimant asked employer whether any
light-duty jobs were available. Employer told claimant there
were no light-duty positions available. Claimant admitted that
he made no further efforts to find suitable employment.
In light of claimant's failure to market his residual work
capacity, other than his one inquiry of employer, the
commission, as fact finder, could reasonably conclude that
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claimant did not make an adequate effort to find employment
within his restrictions.
Based upon this record, we cannot find as a matter of law
that claimant's evidence sustained his burden of proving that he
adequately marketed his residual work capacity as of November
17, 2000. Accordingly, we affirm the commission's decision.
Affirmed.
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