COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Fitzpatrick and Annunziata
Argued at Alexandria, Virginia
ITT TEVES AUTOMOTIVE and
PACIFIC EMPLOYER'S INSURANCE COMPANY
MEMORANDUM OPINION * BY
v. Record No. 0096-97-4 JUDGE ROSEMARIE ANNUNZIATA
OCTOBER 21, 1997
LORRAINE HILDA JOHNSON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Douglas A. Seymour (Law Offices of Harold
MacLaughlin, on brief), for appellants.
V.R. Shackelford, III (Shackleford,
Honenberger, Thomas, Willis & Gregg, P.L.C.,
on brief), for appellee.
ITT Teves Automotive and Pacific Employer's Insurance
Company (appellants) appeal the decision of the full commission
awarding temporary total disability (TTD) compensation to
Lorraine H. Johnson (claimant). Specifically, appellants argue
that the credible evidence was insufficient to support the
commission's finding that the claimant made a reasonable effort
to market her remaining work capacity under the standards set
forth in National Linen Serv. v. McGuinn, 8 Va. App. 267, 380
S.E.2d 31 (1989). For the reasons which follow, we affirm.
The incident underlying the workers' compensation claim
occurred on March 5, 1992 when claimant developed a knot on her
left hand at work. The ganglion cyst which formed there was
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
surgically removed on March 25, 1992. Claimant continued to
experience persistent arm and hand pain after the surgery which
was diagnosed as reflex sympathetic dystrophy. On May 24, 1993
Dr. Victor C. Lee, her attending physician following the surgery,
declared her "totally disabled from all work duties."
Two years later, claimant returned to selective employment
and worked limited hours. The return to restricted work was
approved by Dr. Lee on April 10, 1995. Claimant received
temporary partial disability (TPD) compensation in addition to
her income upon a Supplemental Award entered on January 26, 1996.
She was able to work with her remaining capacities for nine
months until she was terminated in February 1996. Claimant
inspected rejected automotive brake parts to verify that they
were properly rejected by lifting the brake parts with her
functional hand, looking at the parts, and placing them in an
appropriate container.
Dr. Lee's medical report dated February 20, 1996 and
testimony in his May 30, 1996 deposition described claimant's
restrictions as follows: "restricted use of the entire upper left
extremity to assisting only"; unable "to grasp, lif[t], or pull
with that hand"; and cannot "climb ladders or do any overhead
reaching because of two-handed requirement." He also notes that
the use of her right hand and arm was restricted to those
activities "which can be reasonably done with one hand and arm,"
with "frequent periods of alternating sitting and standing
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positions," and she "cannot perform any activities which require
stooping or falling."
At appellants' request, Dr. Abraham A. Cherrick evaluated
claimant on December 13, 1995. In Dr. Cherrick's opinion,
claimant was capable of restricted full time work with limited
use of her left arm.
This matter came before the Virginia Workers' Compensation
Commission upon the application of ITT Teves, insurer, and
claimant. After she was terminated due to a lack of work,
claimant applied for reinstatement of TTD compensation on
February 26, 1996. Appellants filed on February 29, 1996 to
terminate her disability award.
The deputy commissioner denied both applications and entered
a TPD award in favor of claimant, finding that: (1) claimant was
incapable of returning to her pre-injury work; (2) her current
disability was related to the March 5, 1992 work injury; (3) she
did not procure benefits by misrepresentation; (4) her request
for TTD was denied based on her failure to make reasonable effort
to market her residual work ability; (5) she was entitled to cost
of living increases; and (6) she was entitled to TPD at the
weekly rate of $93.62 from July 15, 1995 and continuing until
conditions justify a modification thereof.
On appeal by both parties, the full commission affirmed the
deputy commissioner's findings 1, 2, 3 and 5 and reversed
findings 4 and 6. Specifically, the commission found the
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employee had made a reasonable effort to market her remaining
work capacity, and, therefore, awarded TTD compensation at the
weekly rate of $251.47 commencing on February 9, 1996.
A disabled employee is required to make a reasonable effort
to market her remaining work capacity in order to receive
workers' compensation benefits. See National Linen Serv. v.
McGuinn, 8 Va. App. 267, 269, 380 S.E.2d 31, 33 (1989); Great
Atlantic & Pacific Tea Co. v. Bateman, 4 Va. App. 459, 467, 359
S.E.2d 98, 102 (1987) ("The employee must . . . exercise
reasonable diligence in seeking employment and what is reasonable
in a given case will depend upon all of the facts and surrounding
circumstances."). On appeal, this Court must review "the
evidence in the light most favorable to the prevailing party."
R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390
S.E.2d 788, 788 (1990). "Factual findings of the Industrial
Commission will be upheld on appeal if supported by credible
evidence." James v. Capitol Steel Constr. Co., 8 Va. App. 512,
515, 382 S.E.2d 487, 488 (1989) (citing Crisp v. Brown's Tysons
Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916
(1986)). Where, as in this case, there is "no conflict in the
evidence, 'the question of the sufficiency of the evidence is one
of law.'" CLC Constr., Inc. v. Lopez, 20 Va. App. 258, 267, 456
S.E.2d 155, 159 (1995) (quoting National Linen, 8 Va. App. at
270, 380 S.E.2d at 33).
To determine whether the claimant made a reasonable effort
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commensurate with her abilities, the commission should consider
such factors as:
(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 the job
search; (5) the availability of jobs in the
area suitable for the employee, considering
[her] disability; and (6) any other matter
affecting employee's capacity to find
suitable employment.
National Linen, 8 Va. App. at 272, 380 S.E.2d at 34.
"'The commission . . . determines which of these or other
factors are more or less significant with regard to the
particular case.'" Lynchburg Gen. Hosp. v. Spinazzolo, 22 Va.
App. 160, 168, 468 S.E.2d 146, 150 (1996) (quoting National
Linen, 8 Va. App. at 272-73, 380 S.E.2d at 34-35).
Appellants contend claimant's evidence relating to the
nature and extent of her job search and to her intent in
conducting the search was not credible and that the commission's
reliance on it was error. The evidence shows that, during the
ten months she searched for employment, claimant registered with
the Virginia Employment Commission (VEC), looked in the
newspaper, and asked a few individuals about working with abused
children and about some unidentified positions at the University
of Virginia. She presented no documentary evidence of her
enrollment with the VEC nor of her compliance with the VEC's
minimum weekly required job contact. The record does not show
what employment opportunities she found in the newspaper.
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With respect to claimant's intent in conducting her search,
appellants argue that she placed unwarranted limitations on the
kind of work she would accept and unduly narrowed the job search
to work with children and work near her home. Noting that she
had worked for ITT Teves Automotive in Culpeper and travelled to
Charlottesville to receive medical treatment, appellants contend
that, viewed as a whole, the claimant's job search efforts do not
reflect a good faith effort to market her remaining work capacity
as required by Code § 65.2-510.
Claimant argues her residual capacity to work is severely
limited by her physical condition and by the restrictions set by
Dr. Lee. She was limited to working with one arm and needed to
alternate frequently between periods of sitting and standing.
She also contends her training was limited. She was terminated
from employment at 48 years of age, and evidence of her work
experience discloses she had been employed as a waitress, a
worker assembling circuit breakers, a manufacturer of fire
extinguishers and an assembly line worker for employer since
1980. She completed the 11th grade and had no work training
other than the on-the-job training with ITT Teves Automotive.
Her work with employer was specialized, and her work skills and
experience were not readily transferable to other jobs. With
respect to the nature and extent of her job search, claimant
points to the evidence that she registered with the VEC, reviewed
help wanted ads, and made inquiries about jobs in Culpeper,
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Fredericksburg and Charlottesville. She further notes that she
lives in an isolated, rural area with few job opportunities.
Finally, she argues that employer offered her no vocational
training or job placement services after she was laid off.
Under this Court's standard of review, we find the evidence
is sufficient to affirm the commission's credibility
determination that claimant, in fact, contacted employers in
search of employment and its finding that claimant made
reasonable efforts to market her residual capacity. Our review
of the evidence of claimant's job search, in the context of her
injury, her restrictions and her work experience, establishes
that the commission did not err in its decision and that its
award of total incapacity benefits from February 9, 1996, through
the time of the evidentiary hearing on May 10, 1996, must be
affirmed.
Affirmed.
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