COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
BILLY NORTON/NORTON'S MARINA, INC.
AND
SELECTIVE INSURANCE COMPANY OF AMERICA
MEMORANDUM OPINION*
v. Record No. 0579-99-2 PER CURIAM
JULY 20, 1999
GEORGE TOMPKINS GILL, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Cecil H. Creasey, Jr.; Jeffrey W. Saunders;
Phyllis C. Katz; Sands, Anderson, Marks &
Miller, on brief), for appellants.
(Kathryn Spruill Lingle; Brenner, Dohnal,
Evans & Yoffy, P.C., on brief), for appellee.
Billy Norton/Norton's Marina, Inc. and its insurer
(hereinafter referred to as "employer") contend that the
Workers' Compensation Commission (commission) erred in (1)
failing to find that George Tompkins Gill, Jr.'s (claimant)
claim for temporary total disability benefits for the period
from April 12, 1997 through May 28, 1997 was barred by the
doctrine of res judicata; (2) finding that claimant adequately
marketed his residual work capacity; (3) refusing to allow
employer to call claimant's wife as a witness at the hearing;
and (4) allowing claimant to testify at the hearing when he did
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
not identify himself as a witness in his answers to
interrogatories. 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.
Employer did not raise the doctrine of res judicata as a
defense at the hearing before the deputy commissioner. In
addition, employer did not assert res judicata in its request
for review before the full commission. Employer mentioned res
judicata for the first time in its written statement on review.
In that written statement, employer did not raise res judicata
as an issue on appeal. Rather, employer only made a brief
reference to res judicata in the section of the written
statement addressed to the issue of causation.
Under these circumstances, the commission did not err in
failing to address the applicability of the doctrine of res
judicata as a bar to claimant's claim, and we will not address
it for the first time on appeal.
II.
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,
- 2 -
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). The factors the commission should
consider in deciding whether a claimant has made reasonable good
faith efforts to market his 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 he made a good faith
effort to market his residual work capacity, the commission
found as follows:
The claimant registered with the VEC in
July and November 1997 and reviewed the
classified advertisements for job leads. He
- 3 -
submitted a list of over 34 employers whom
he personally contacted in his search for
work, and he successfully found work after
three months. The claimant resumed his
search when Mount could no longer employ
him, and he has maintained a job since
January 5, 1998. He graduated from high
school and has experience in performing
manual labor. The evidence does not show
that the claimant's search was unreasonable
or that he self-limited his job search. As
stated, Dr. [Steven M.] Fiore limited him to
light-duty work, and it is reasonable that
he would seek employment which did not
involve heavy manual labor or lifting and
bending, such as carpentry. The claimant
still suffers back pain, takes medications,
and does exercises.
The testimony of claimant and Wayne B. Mount and the
documentary evidence submitted by claimant detailing his 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 he adequately marketed his residual
capacity applying the guidelines enumerated in McGuinn.
III.
In ruling that employer was neither "penalized nor
prejudiced" by the commission not allowing employer to call
claimant's wife as a witness to testify regarding a calendar she
kept of the days claimant worked, the commission found as
follows:
The employer cross-examined the claimant
about the days worked and amounts earned by
the claimant, and the Deputy Commissioner
- 4 -
also allowed the post-Hearing deposition of
the claimant's employer, Mount, regarding
the same information. Moreover,
Interrogatory No. 2 requested the date of
return to work; the name, address, and
telephone number of the employer; the nature
of the job; and the weekly income. The
claimant completely answered these
questions, and they were consistent with his
and Mount's testimony. The question did not
ask for records, and the claimant did not
attempt to introduce the calendar into
evidence. The record was fully developed
regarding the earnings, and it does not
appear that the calendar would have supplied
anything more than cumulative information.
Rule 2.2 of the Rules of the Virginia Workers' Compensation
Commission provides that "[e]xcept for rules which the
Commission promulgates, it is not bound by statutory or common
law rules of pleading or evidence nor by technical rules of
practice." Based upon this rule and the lack of any evidence of
prejudice to employer, we cannot say as a matter of law that the
commission erred in refusing to permit employer to call
claimant's wife as a witness to testify at the hearing.
IV.
In ruling that the deputy commissioner did not abuse his
discretion in allowing claimant to testify, the commission found
as follows:
It is true a Deputy Commissioner, in an
exercise of his or her discretion, may
exclude a witness when a party fails to
answer interrogatories or identify the
witness in interrogatory answers. However,
one would assume that a party would
potentially testify even if he is not
- 5 -
formally designated as a witness. The
Hearing was on the claimant's claim, and he
had the burden of proof. Also, the record
does not reflect that employer's counsel
offered any evidence of prejudice.
In light of Rule 2.2, the fact that claimant bore the
burden of proof, and employer's failure to show any evidence of
genuine surprise or prejudice, the commission did not abuse its
discretion in allowing claimant to testify.
For these reasons, we affirm the commission's decision.
Affirmed.
- 6 -