COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
CVS DISTRIBUTION CENTER/CVS CORPORATION
MEMORANDUM OPINION*
v. Record No. 1993-99-2 PER CURIAM
DECEMBER 21, 1999
DELORIS ANNE BATTLE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Ralph L. Whitt, Jr.; Williams, Lynch &
Whitt, on brief), for appellant.
(Wesley G. Marshall, on brief), for appellee.
CVS Distribution Center/CVS Corporation (employer) contends
that the Workers' Compensation Commission (commission) erred in
finding that (1) employer failed to prove that it made a bona
fide offer of selective employment to Deloris Anne Battle
(claimant); (2) employer failed to prove that claimant
unjustifiably refused selective employment; and (3) claimant
proved that she adequately marketed her residual work capacity.
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.
I. and II.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "To
support a finding of refusal of selective employment 'the record
must disclose (1) a bona fide job offer suitable to the
employee's capacity; (2) [a job offer that was] procured for the
employee by the employer; and (3) an unjustified refusal by the
employee to accept the job.'" James v. Capitol Steel Constr.
Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 489 (1989) (quoting
Ellerson v. W.O. Grubb Steel Erection Co., 1 Va. App. 97, 98,
335 S.E.2d 379, 380 (1985)).
In holding that employer failed to prove that it made a
bona fide offer of light-duty employment to claimant, the
commission found as follows:
The claimant's testimony that [Mark] Ball
failed to give her any job specifics, such
as when, what time, and what job
description, was not refuted. There is no
evidence that she received any information
about the job or a written approval from Dr.
[Thorp J.] Davis. The employer submitted a
letter from its operations manager dated
June 25, 1998, stating that the claimant was
terminated for failing to show on June 22,
1998, "to an alternative duty assignment
. . ." This evidence does not prove a
legitimate offer. Further, the claimant
testified to her confusion about returning
to light duty because her written work
excuse was through June 30, 1998, which
confusion is understandable. At most, the
record establishes that the employer
communicated an offer to Dr. Davis and that
he talked about light duty with [claimant].
Yet, he was the treating physician, not an
employer representative.
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Claimant's unrefuted testimony supports the commission's
finding that employer never offered claimant a light-duty job in
June 1998. While employer may have made Dr. Davis aware of such
a job, employer never specifically communicated a job offer to
claimant, whose treating physician had left her with the
impression that she was excused from work until at least
June 30, 1998.
Based upon claimant's testimony, the commission could
reasonably conclude that employer did not make a bona fide offer
of selective employment to claimant which she could have either
accepted or refused on June 22, 1998. Accordingly, we cannot
find as a matter of law that employer sustained its burden of
proving that it made a bona fide offer of selective employment
to claimant. Based upon our ruling on this issue, we need not
address employer's contention that claimant unjustifiably
refused light-duty employment.
III.
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.
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,
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434 S.E.2d 314, 318 (1993). The factors the commission should
consider in deciding whether a claimant has made reasonable good
faith efforts to market his or her remaining capacity are:
(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 review the evidence in the light most
favorable to . . . the party prevailing before the commission."
Id. at 270, 380 S.E.2d at 33. Moreover, factual findings made
by the commission will be upheld on appeal if supported by
credible evidence. See James v. Capitol Steel Constr. Co., 8
Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
In ruling that claimant proved that she made a good faith
effort to market her residual work capacity, the commission
found as follows:
Regardless of [claimant's] disputed
light- or regular-duty status, she began
searching for alternative employment on
June 27, 1998, through the newspaper,
temporary agencies, and the VEC. The
claimant's job search list reflects over 60
employers contacted and includes some
repeated attempts and filings of
applications. Considering her age, the
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extent and nature of her injury, her
experience, and her eventual success in
getting a new job, we find that she
adequately marketed. Contrary to employer's
argument, the duty to market does not
require an injured claimant to seek
employment from her previous employer.
Claimant's testimony and the documentary evidence submitted
by her detailing her job contacts constitute credible evidence
to support the commission's factual findings, which are binding
on appeal. Based upon those findings, the commission did not
err in holding that claimant proved she adequately marketed her
residual capacity, applying the guidelines enumerated in
McGuinn.
For these reasons, we affirm the commission's decision.
Affirmed.
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CVS Distribution Center/CVS Corp. v. Deloris Battle
Combined Opinion