COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bray and Bumgardner
Argued at Norfolk, Virginia
ROY RAYMOND CARNES
MEMORANDUM OPINION * BY
v. Record No. 2711-97-1 JUDGE SAM W. COLEMAN III
JUNE 30, 1998
RAYTHEON CONSTRUCTORS, INC. and
LIBERTY MUTUAL FIRE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
John H. Klein (Rutter & Montagna, on brief),
for appellant.
William C. Walker (Donna White Kearney;
Taylor & Walker, P.C., on brief), for
appellees.
In this appeal from the Workers' Compensation Commission,
Roy Raymond Carnes (claimant) contends the commission erred when
it denied him total temporary disability benefits on the ground
that he failed to prove that he made reasonable efforts to market
his residual work capacity between December 4, 1996 and
January 6, 1997, and beginning February 18, 1997 and continuing.
Finding no error, we affirm the commission's decision.
On October 23, 1996, claimant sustained a compensable back
injury while working for Raytheon Constructors, Inc. (employer)
as a carpenter. The parties stipulated that claimant was
entitled to temporary total disability benefits from November 14,
1996 through December 3, 1996, and from January 7, 1997 through
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
February 17, 1997. The commission found, and claimant does not
contest, that between the dates of December 4, 1996 to January 7,
1997, and beginning February 18, 1997 and continuing, claimant
was released to light-duty work subject to a five-pound lifting
restriction.
Employer's Safety Supervisor, Howard Day, testified that,
upon being injured, claimant was given a telephone number which
he could use to inquire into light-duty work with employer. Day
testified, and claimant admitted, that claimant did not inform
employer of his release to light-duty work. Day testified that
he could not say that a light-duty job definitely would have been
available for claimant had he contacted employer.
Claimant admitted that he did not begin to look for
light-duty work until February 3, 1997. Claimant testified that
he unsuccessfully applied for employment with 110 potential
employers. He stated that all of the jobs he applied for were in
construction, landscaping, and carpentry. Several of these
employers told claimant that they had no light-duty jobs
available for him and that he should reapply upon being released
to full duty by his doctor. Claimant admitted that he was not
capable of performing any of the jobs to which he applied because
they required lifting weights in excess of his five-pound lifting
restriction. He explained, however, that he was willing to
attempt to perform these jobs despite the lifting restriction.
The commission held that claimant did not make reasonable
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efforts to market his residual work capacity because he only
applied for jobs that were beyond his physical limitations.
A claimant who is released to light-duty work must prove
that he has made a reasonable effort to market his remaining work
capacity during any period for which disability benefits are
sought. See Washington Metro. Area Transit Auth. v. Harrison,
228 Va. 598, 601, 324 S.E.2d 654, 655 (1985). What constitutes a
reasonable marketing effort is determined by the facts and
circumstances of each case. See Great Atl. & Pac. Tea Co. v.
Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 100 (1987).
When reviewing the commission's denial of disability
benefits, we view the evidence in the light most favorable to the
employer, as the prevailing party below. See National Linen
Serv. v. McGuinn, 8 Va. App. 267, 270, 380 S.E.2d 31, 32 (1989).
Unless we can say that claimant's evidence as a matter of law
proved that he reasonably marketed his residual work capacity,
the commission's finding is conclusive and binding upon us. See
Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d
833, 835 (1970).
FIRST PARTIAL DISABILITY PERIOD:
DECEMBER 4, 1996 THROUGH JANUARY 6, 1997
The evidence established that claimant did not seek any
light-duty work from the employer or elsewhere between
December 4, 1996 and January 6, 1997. Whether light-duty work
was available from the employer is inapposite to the claimant's
burden to prove a reasonable marketing effort. The claimant,
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upon whom the marketing burden rests, did not make known to the
employer his availability for light-duty work. But, moreover,
during this period he made no effort to market his residual
capacity. We cannot find, as a matter of law, that claimant
sufficiently marketed his residual work capacity during the first
disability period in question.
SECOND DISABILITY PERIOD:
FEBRUARY 18, 1997 AND CONTINUING
A claimant does not meet his burden of proving that he made
reasonable efforts to market his residual work capacity where he
confines his job search to work for which he is not qualified by
education, experience, or physical limitations. See Bateman, 4
Va. App. at 467-68, 359 S.E.2d at 102-03. The "effort to seek
employment will not be deemed reasonable if the claimant places
undue limitations on the kind of work he will accept, including
limitations not justified by the character of his impairment."
Id. at 467, 359 S.E.2d at 102 (quoting 2 A. Larson, Workmen's
Compensation Law § 57.61(d) (1987)). It appears by claimant's
own admission that he confined his marketing efforts to
carpentry, construction and landscaping jobs that were not within
his physical limitations. Claimant did not look for a sedentary
job or one that did not require lifting. Thus, under Bateman, we
cannot say that the commission erred by finding that claimant
failed to prove he reasonably marketed his residual capacity
after February 18, 1997.
Accordingly, we affirm the commission's decision.
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Affirmed.
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