COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bumgardner and
Senior Judge Hodges
COMMONWEALTH OF VIRGINIA/
DEPARTMENT OF TRANSPORTATION
MEMORANDUM OPINION*
v. Record No. 0791-01-1 PER CURIAM
AUGUST 21, 2001
RUFFIN HENRY SAVEDGE, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Mark L. Earley, Attorney General; Judith
Williams Jagdmann, Deputy Attorney General;
Gregory E. Lucyk, Senior Assistant Attorney
General; Scott John Fitzgerald, Assistant
Attorney General, on brief), for appellant.
(Robert E. Walsh; Rutter, Walsh, Mills &
Rutter, L.L.P., on brief), for appellee.
Commonwealth of Virginia/Department of Transportation
(employer) contends that the Workers' Compensation Commission
erred in finding that Ruffin Henry Savedge, Jr. (claimant)
proved that he made a good faith effort to market his residual
work capacity between July 21, 1999 and June 26, 2000. Upon
reviewing the record and the briefs of the parties, we conclude
that this appeal is without merit. Accordingly, we summarily
affirm the commission's decision. See Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
In order to establish entitlement to benefits, a partially
disabled employee must prove that he has made a reasonable
effort to procure suitable work but has been unable to do so.
Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359
S.E.2d 98, 101 (1987). "What constitutes a reasonable marketing
effort depends upon the facts and circumstances of each case."
The Grief Companies v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d
314, 318 (1993). We have discussed factors which the commission
should consider in deciding whether a claimant has made
reasonable good faith efforts to market his remaining 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 his
job search; (5) the availability of jobs in
the area suitable for the employee,
considering his 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). In reviewing the
commission's findings, "we view the evidence in the light most
favorable to . . . the party prevailing before the commission."
Id. at 270, 380 S.E.2d at 33.
So viewed, the evidence proved that claimant sustained a
compensable injury to his neck and shoulder while working for
employer on March 13, 1991. Employer accepted the claim as
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compensable and paid benefits to claimant for various periods of
disability.
Claimant, a fifty-eight-year-old high school graduate,
worked as a deck hand for employer for thirteen months before
his injury. Before that, he worked as a welder for fifteen
years. Since claimant's 1991 injury, employer has not offered
him any vocational rehabilitation services. Claimant has
permanent restrictions, established by the medical evidence, of
sedentary work, with no lifting over ten pounds. He sustained a
fifty-percent loss of use of his right arm.
In May 1999, claimant registered with the Virginia
Employment Commission. Claimant sought employment leads through
the newspaper, friends, and neighbors. Claimant provided a job
contact list for the relevant time period, indicating that he
made three job contacts per week. All of the jobs exceeded
claimant's restrictions, but he testified that he did not know
this fact until he made the contacts and talked with the people
about the jobs. Claimant testified that he was advised to make
three job contacts per week and, therefore, he limited his
contacts to that number. He returned to some employers on more
than one occasion to see if they might have an opening within
his restrictions. The types of jobs claimant sought included
farm worker, construction laborer, grounds man, stocker,
cleaner, gas station attendant, lawn care, cook and maintenance
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worker. He applied to hotels, grocery stores, retail stores,
retirement communities, service stations, fast food restaurants,
construction companies, and gas stations. He looked for jobs in
the Surry, Williamsburg, and Jamestown areas. Claimant
estimated that he contacted seventy-five percent of the
prospective employers in-person and twenty-five percent by
telephone. Claimant has not had a driver's license since 1993.
Claimant believed that he would have to pay a fine to reinstate
his license.
Based upon this record, the commission found as follows:
[T]he evidence establishes that the claimant
marketed his residual capacity from July 21,
1999, through June 26, 2000. In doing so,
we note that the claimant has, with one
exception, made three job contacts per week.
This has resulted in no offers of
employment. The employer has offered no
assistance in the claimant's job search.
While we are troubled that the claimant
limited his attempts at employment contacts
to three per week, it is apparent that he
did so based on being advised that this was
sufficient. In view of his background,
severe disability, and the fact that there
have been no job offers, we do not find this
fatal to the claimant's case. The claimant
looked for employment in Surry,
Williamsburg, and Jamestown, the areas he
apparently has the most familiarity because
they are in close proximity to his home and
pre-injury work. In the absence of any
evidence that the claimant worked or had any
connection with the Hopewell or Petersburg
areas, plus the lack of any evidence
concerning the proximity of his home to
these cities, we do not find his failure to
seek employment there fatal to his case.
Likewise, it is not unreasonable that the
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claimant returned to employers during a
one-year period to determine if they may
have a job available within his
restrictions.
The commission's findings are supported by credible
evidence, including the medical records, claimant's testimony,
and his list of job contacts. As fact finder, the commission
could conclude that claimant's contact with three employers per
week, over an approximately one-year period, was reasonable in
light of claimant's age, level of education, prior work history
of manual labor jobs, and his severe physical limitations.
As fact finder, the commission was entitled to conclude
that claimant's limit on the number of job contacts per week and
the particular geographical area of his search was not fatal to
his case. Claimant testified that he was "advised" that he
should make three job contacts per week. In addition, although
employer asserts that claimant should have looked for work in
the Hopewell and Petersburg areas, no evidence showed how close
these areas were to his home or whether he had any prior
connection to these areas. The law requires only a reasonable
marketing effort, not the most efficient or best effort.
Moreover, no evidence showed that appellant's failure to attempt
to reinstate his driver's license indicated a lack of good faith
in his efforts to market his residual work capacity.
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Because the commission's findings are supported by credible
evidence, we will not disturb them on appeal. Accordingly, we
affirm the commission's decision.
Affirmed.
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