COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
SMITHFIELD FOODS, INC. AND
LUMBERMENS MUTUAL CASUALTY COMPANY
MEMORANDUM OPINION*
v. Record No. 2235-99-2 PER CURIAM
FEBRUARY 8, 2000
CHARLES JOHNSON, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William W. Nexsen; J. Derek Turrietta;
Stackhouse, Smith & Nexsen, on brief), for
appellants.
No brief for appellee.
Smithfield Foods, Inc. and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission (commission) erred in finding that
Charles Johnson, Jr. (claimant) adequately marketed his residual
work capacity beginning April 4, 1996. Upon reviewing the
record and the opening brief, we conclude that this appeal is
without merit. Accordingly, we summarily affirm the
commission's decision. See Rule 5A:27.
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.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
See 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 Greif 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.
In awarding benefits to claimant, the commission considered
the McGuinn factors and found as follows:
[T]he uncontradicted and indisputable
medical evidence confirms that the claimant
has a serious back condition that continues
to affect his job search efforts, severely
limiting the opportunities that would
otherwise be available to him. . . .
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. . . Johnson as of the June 8, 1997
hearing was 47 years old. The claimant only
has a third grade education, and he cannot
read or write, except to sign his name.
Johnson's credible testimony established
that he was employed once at a peanut
factory for approximately 2 1/2 months, but
his work thereafter was limited to jobs as a
construction laborer and other menial work,
e.g., cleaning glasses at a disco bar. This
minimal education, illiteracy, and limited
work experience further severely handicaps
Johnson's employment opportunities.
. . . [Claimant's] wife had to
accompany him on job search excursions,
because he . . . could not fill out
employment applications . . . . [Johnson's]
wife was employed, so the claimant's job
search efforts were additionally limited to
periods when his wife was not working.
. . . In light of these factors, and
[claimant's] credible testimony at the
evidentiary hearings, as well as the
comments from his treating physician about
[claimant's] concern relative to his
continuing unemployment, we conclude that
the evidence establishes more than
sufficient intent by the claimant in
conducting his job search . . . .
. . . Johnson's uncontradicted
testimony established that his job search
efforts were sufficient to satisfy the
Virginia Employment Commission [VEC], which
paid unemployment compensation to [him].
Claimant's testimony, the medical evidence, and the
documentary evidence detailing claimant's job contacts
constitute credible evidence to support the commission's factual
findings, which are binding on appeal. Based upon those
findings and in considering the factors enumerated in McGuinn,
the commission could reasonably conclude that claimant
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adequately marketed his residual work capacity. In its role as
fact finder, the commission articulated legitimate reasons for
accepting claimant's testimony and evidence regarding his job
contacts and for giving little probative weight to the
affidavits obtained by employer.
For these reasons, we affirm the commission's decision.
Affirmed.
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