COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Clements
Argued at Alexandria, Virginia
METROPOLITAN WASHINGTON AIRPORTS
AUTHORITY AND HARTFORD UNDERWRITERS
INSURANCE COMPANY
OPINION BY
v. Record No. 2900-02-4 JUDGE ROSEMARIE ANNUNZIATA
AUGUST 19, 2003
THOMAS E. LUSBY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Benjamin J. Trichilo (Trichilo, Bancroft,
McGavin, Horvath & Judkins, P.C., on briefs),
for appellants.
Michael A. Kernbach (Burgess, Kernbach &
Perigard, PLLC, on brief), for appellee.
Metropolitan Washington Airports Authority ("MWAA") and
Hartford Underwriters Insurance Company, appellants, appeal the
Workers' Compensation Commission's award of occupational disease
benefits to Thomas E. Lusby, appellee, citing four grounds for
reversal. Appellants contend the commission erred 1) in finding
that Lusby's cardiovascular disease is attributable to his
employment; 2) in applying an erroneous legal standard of
causation; 3) in awarding continued disability benefits based
upon income that Lusby voluntarily limited; and 4) in finding
that Lusby had cured his unjustified refusal to work. For the
reasons that follow, we affirm.
Procedural Background
On August 7, 1995, Thomas Lusby filed a claim for workers'
compensation benefits alleging as grounds the existence of a
compensable occupational disease, specifically coronary artery
disease ("CAD"). The claim was initially heard before the
deputy commissioner in a bifurcated proceeding to first
determine whether the statutory presumption of Code
§ 65.2-402(B) applied. 1 The deputy commissioner found that it
did, and the commission affirmed. In a subsequent hearing on
August 9, 2000, the deputy commissioner found that the statutory
presumption had been rebutted under Bass v. City of Richmond,
258 Va. 103, 515 S.E.2d 557 (1999), and dismissed the claim. On
appeal, the full commission reversed the deputy commissioner's
decision and found that the medical opinions admitted on behalf
of MWAA were insufficient to rebut the statutory presumption.
It remanded the case to the deputy commissioner for further
proceedings, who awarded Lusby temporary partial disability
benefits commencing March 16, 1998. The commission affirmed the
1
Code § 65.2-402 provides:
Hypertension or heart disease causing the
death of, or any health condition or
impairment resulting in total or partial
disability of [covered employees] shall be
presumed to be occupational diseases,
suffered in the line of duty, that are
covered by this title unless such
presumption is overcome by a preponderance
of competent evidence to the contrary.
- 2 -
award, modifying the beginning date for temporary partial
benefits from March 16, 1998 to January 1, 1997. This appeal
followed.
Factual Background
Under the relevant standard of review, we consider the
evidence in the light most favorable to the party who prevailed
in the proceedings below, in this case, Lusby, together with all
reasonable inferences that may be drawn. R.G. Moore Bldg. Corp.
v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
I. Employment History
The evidence established that Lusby began working for MWAA
in July 1979, and remained employed there until May 5, 1995,
when he was diagnosed with heart disease. While employed by
MWAA, Lusby did not engage in actual firefighting or emergency
rescue activities. His duties consisted primarily of "training
drills and exercises" and, on occasion, outdoor inspections.
During the time Lusby worked for MWAA, he held part-time
jobs as a tour bus driver for Gold Line Bus Company and as a
security guard for Calvert Memorial Hospital and worked 80 hours
per week. Acting upon medical advice, Lusby retired on
disability from MWAA in May 1995. At the time Lusby retired, he
held the position of assistant fire marshal. Shortly
thereafter, Lusby was offered light-duty employment as a
dispatcher with MWAA. The dispatcher position paid an annual
- 3 -
salary of $21,000 or an average weekly wage of $403.85; the
position was not expected to continue longer than one year.
Lusby refused the offered position because of what he believed
was insufficient pay relative to his prior earnings of $44,000.
The deputy commissioner determined that the refusal was
unjustified. 2 Although he refused the dispatcher position, Lusby
continued his part-time work for Gold Line Bus Company and
Calvert Memorial Hospital. He also applied for a position as an
inspector with the Alexandria Fire Department, but was not
hired. After rejecting the dispatcher position, Lusby submitted
an application for Civil Service retirement on February 16,
1996, stating he could not "fight fire at M.W.A.A."
In 1996, Lusby earned $527.05 per week in his two part-time
jobs, in 1997, he earned $620.50 per week, in 1998, he earned
$704.31 per week, and in 1999, he earned $783.19 per week. 3
Lusby acknowledged that he could have worked more hours at these
two jobs and earned more income. However, his Civil Service
disability pension restricts the earnings he can make. Lusby
acknowledged that he did not request additional work hours
because he did not want to jeopardize his pension benefits which
would have been reduced had he earned more than $39,000 per year
(80% of his base pay).
2
Lusby does not dispute that the refusal was unjustified.
3
Lusby worked part-time as a bus driver and full-time in
security until 1998, when the time patterns were reversed.
- 4 -
II. Medical History
Lusby did not have heart disease before his employment with
MWAA. However, his medical history was significant for
hypertension that was controlled by medication, high
cholesterol, obesity, diabetes, and color blindness. Dr. Martin
Brown, MWAA's medical director, performed an annual physical on
Lusby in September 1989 and found that Lusby satisfied the
requirements for the firefighter position.
In the course of his employment, Lusby was exposed to smoke
and fumes on the job, especially at car and pit fires, where
fuel, chemicals, rags, and tires were burned. Pit fires are
controlled fires generating heavy black smoke; they are
conducted to simulate aircraft fires. He was also exposed to
aircraft fuel fumes and smoke in the shop area he frequented
while making inspections, as well as in his office, which was
poorly ventilated. His job duties did not include firefighting
or performing emergency rescue services, but he was expected to
complete all the tasks required of a firefighter and he had
participated in those activities during controlled training
drills and exercises. He generally described the stress level
on the job as the same as in other jobs, but noted periods of
heightened job-related stress, specifically when he dealt with
toxic chemicals.
- 5 -
Lusby was intermittently placed on light duty after the
results of a stress test performed in February 1994, and
repeated in April 1995, showed "a reason for concern." 4 On April
28, 1995, a cardiologist, Dr. Steven Roberts, evaluated Lusby.
Dr. Roberts reported that the results of a screening exercise
electrocardiogram were abnormal, as were the results of a
subsequent exercise and resting study, which "suggest[ed]
scar[ring] in the right coronary artery and possibly the left
circumflex artery as well." Dr. Roberts performed a cardiac
catheterization and angioplasty on May 5, 1995 and diagnosed
Lusby with severe coronary artery disease ("CAD").
On May 19, 1995, Dr. Mahesh Shah, who assumed
responsibility as Lusby's treating cardiologist, noted that
Lusby suffered from premature CAD, without significant
symptomatology. Dr. Shah acknowledged Lusby's history of
diabetes, hypertension and high cholesterol, and noted that
Lusby's position as a firefighter "requires very harsh and
extreme exertion under extreme conditions." He recommended that
Lusby retire or find alternative work, if MWAA failed to provide
4
Dr. Christopher S. Holland, the medical director of the
facility where Lusby was treated, initially placed Lusby on
light duty on February 4, 1994. He returned Lusby to full duty
on February 18, 1994. However, after a stress test in April
1995 revealed "perfusion deficit highly suggestive for coronary
artery disease," Dr. Holland placed Lubsy on light duty once
again.
- 6 -
a position with modified duty requirements. Lusby retired
shortly thereafter.
On June 2, 1995, Dr. Holland found that Lusby was "[n]ot
medically fit for fire fighting as a career." 5 He reported the
results to MWAA, stating that Lusby had a "history of obesity,
diabetes, hypertension, elevated cholesterol, and a generally
sedentary life-style, all which have contributed to his
premature coronary artery disease." He advised that Lusby's
disease was severe, chronic, progressive, and unlikely to
improve. He concluded that, "although the [MWAA] and the career
of fire fighting did not cause Mr. Luzby's [sic] coronary artery
disease, the stress and physical demands of the job could result
in myocardial infarction or other catastrophic cardiac events,
given his compromised coronary artery circulation." He also
noted that, consistent with MWAA policy, permanent light-duty
status was not available and that Lusby's medical condition
could not be accommodated by MWAA "because every firefighter is
expected to be physically capable of performing, safely and
healthfully, all aspects of the job, even if they are not
routinely called on to do so." Dr. Holland recommended that
MWAA consider offering Lusby less demanding positions in the
non-public-safety sector.
5
Dr. Holland had previously reported, on May 2, 1995, that
the results of Lusby's thallium perfusion scan were "highly
suggestive for coronary vascular disease."
- 7 -
On October 5, 1995, Dr. Shah had Lusby perform a thallium
stress test, and he interpreted the results to be abnormal,
"showing stress-induced ischemia." In a report to Lusby's
family physician on December 26, 1995, Dr. Shah reported that
Lusby could not perform the work duties of a firefighter.
Dr. Shah stated that "exposure to extreme exertion and
temperature would cause undue stress on his cardiovascular
system."
On July 15, 1999, MWAA's counsel sent a letter to
Dr. Holland, asking whether Lusby's employment with MWAA caused
his heart disease. In response to the letter, Dr. Holland's
opinion addressed only Lusby's contention that he was exposed to
several chemical agents, which he believed "played a role in the
development of [his] coronary artery disease." Dr. Holland
reported that:
Coronary artery disease refers to narrowing
of the coronary vessels due to
atherosclerosis, the exact cause of which
are [sic] unknown, but which is widely
acknowledged to be due to the interaction of
certain risk factors. The principal
modifiable risk factors include cigarette
smoking, hypertension, elevated serum
cholesterol, physical inactivity, and
obesity, while increasing age, male gender,
and family history are the principal
non-modifiable risk factors.
Dr. Holland stated that non-work-related factors caused Lusby's
coronary artery disease, specifically noting a "combination of
'bad genes' and lifestyle choices." Dr. Holland confined his
- 8 -
discussion of work-related causes to Lusby's claim that his CAD
was caused by exposure to certain chemicals. In his report, he
listed four chemicals as "potential occupational cardiotoxic
agents" and other miscellaneous agents and reviewed the
literature describing their possible effect on cardiovascular
health. He denied that four of the five chemical agents to
which Lusby may have been exposed in his work as a firefighter
would "cause" CAD, but noted that carbon disulfide could cause
atherosclerosis, and nitro compounds could induce angina or
cardiovascular death. He discounted their role in Lusby's case,
however, opining that it was unlikely he had been exposed to
such chemicals in the course of his employment. Dr. Holland
concluded that "the medical literature does not support the
contention that Mr. Lusby's periodic exposure to chemical fumes
'caused' his coronary artery disease."
Cardiologist Dr. Stuart Seides reviewed Lusby's medical
records for MWAA and concluded that there was no association
between Lusby's employment with MWAA and the development of his
coronary artery disease. He stated, "Any attempt to make this
association is contrary to our current scientific understanding
as to the genesis of this process."
Cardiologist Dr. Warren Israel also reviewed Lusby's
medical records for MWAA. In his report on August 19, 1999,
Dr. Israel noted Lusby's history of diabetes, hypertension,
obesity, prior cigarette smoking, cholesterol problems, a
- 9 -
sedentary life-style, ischemia and multiple coronary artery
obstructions. Dr. Israel agreed that Lusby had coronary artery
disease, but opined that the disease in Lusby's case was
"entirely explained" and caused by the multiple risk factors
cited above. Dr. Israel further opined that, while Lusby may
have been exposed to multiple chemicals during his employment,
"these would not be causative agents in the development of his
atherosclerotic coronary artery disease." However, in support
of his conclusion that occupational stress is "not even [a]
minor risk factor" for coronary artery disease, Dr. Israel
explained that scientific investigations into a causal link
between work-related stress and coronary artery disease were
inconsistent. He concluded that, if such a relationship
existed, it "would have been proven by now." Thus, Dr. Israel
opined, "based upon reasonable medical certainty . . . Mr.
Lusby's atherosclerotic coronary artery disease would not be
causally related to work activities as a firefighter, even if he
were an active firefighter over the years."
Lusby was examined in August 1999 by Dr. Richard Schwartz. 6
Dr. Schwartz reviewed Dr. Roberts' records as well as other
medical documentation and concluded that Lusby's family history
was not a contributory factor, but identified other risk factors
operating in Lusby's case. He opined that Lusby's
6
Dr. Schwartz was an associate of Dr. Steven A. Roberts,
who had previously treated Lusby.
- 10 -
occupation-related stress could not be excluded as a cause of
his coronary disease:
This is documented both by history and by
the medical records. Following the
discovery of coronary artery disease, the
patient was relieved of his duties in active
fire suppression. This is a decision with
which I concur. . . . [C]oronary artery
disease is a multifactorial process
involving many risk factors. Those present
in Mr. Lusby include his occupational stress
as a firefighter, his adult onset diabetes,
his hypertension, and hyperlipidemia. As
noted in the past, it is impossible to
identify proportional causation amongst
these risk factors. Likewise, it is
impossible to exclude any of these risk
factors by history. Therefore, one must
conclude that it is at least as likely that
his occupational stress contributed to his
coronary artery disease as his
hyperlipidemia. Clearly, there is no
genetic, congenital, or traumatic cause for
his disease.
Dr. Israel disputed Dr. Schwartz's findings, stating that
Dr. Schwartz had failed to consider that, although Lusby's job
title was firefighter, he only fought fires in controlled
training, drills, and exercises.
Analysis
I. Statutory Presumption
It is undisputed that Lusby is an employee covered under
the Virginia Workers' Compensation Act and that he is entitled
to the presumption accorded police and firemen under Code
§ 65.2-402, which provides:
- 11 -
Hypertension or heart disease causing the
death of, or any health condition or
impairment resulting in total or partial
disability of [covered employees] shall be
presumed to be occupational diseases,
suffered in the line of duty, that are
covered by this title unless such
presumption is overcome by a preponderance
of competent evidence to the contrary.
MWAA claims that it has satisfactorily rebutted the
presumption and that the commission's award of benefits
constitutes reversible error. We disagree.
"The commission having found in favor of claimant, it
follows that all just inferences deducible from the evidence
must be resolved by us in his favor. The Commission's finding
may not be disturbed if it be sustained by credible evidence."
Island Creek Coal Co. v. Fletcher, 201 Va. 645, 647-48, 112
S.E.2d 833, 834 (1960).
In Bass v. City of Richmond Police Dep't, 258 Va. 103, 515
S.E.2d 557 (1999), the Virginia Supreme Court held that an
employer overcomes the statutory presumption by showing "both
that 1) claimant's disease was not caused by his employment, and
2) there was a non-work related cause of the disease . . . .
[I]f the employer does not prove by a preponderance of the
evidence both parts of this two-part test, the employer has
failed to overcome the statutory presumption." Bass, 258 Va. at
114, 515 S.E.2d at 562-63 (emphasis in original).
The commission found that MWAA did not rebut the statutory
presumption because it failed to prove that Lusby's disease "was
- 12 -
not caused by his employment." The commission based its
conclusion on Dr. Schwartz's testimony, which attributed Lusby's
CAD to occupational stress, and on Dr. Shah's diagnosis, which
described Lusby's condition as "stress induced ischemia." It
further found that
[t]hese positive opinions are not rebutted
by the mere general denials of cardiologist
Dr. Seides, or of occupational medicine
specialist Dr. Holland. . . . [C]ardiologist
Dr. Israel conceded that the association had
not yet been resolved by the medical
community. . . . At best, we can only find
that the evidence offered by the parties is
inconclusive and in equipoise, insufficient
to satisfy the employer's burden.
The record supports the commission's finding that MWAA
failed to rebut the presumption because it failed to prove that
Lusby's disease was not caused by his employment. "As the
factfinder, the commission is charged with the responsibility of
resolving questions of credibility and of controverted facts."
Virginia Employment Commission v. Gantt, 7 Va. App. 631, 635,
376 S.E.2d 808, 811 (1989). Based on its review of the medical
evidence, the commission credited and accepted as more
persuasive the testimony of cardiologist Dr. Richard Schwartz,
who directly attributed Lusby's heart disease to "occupational
stress" and cardiologist Dr. Mahesh Shah, who specifically
diagnosed Lusby's condition as "stress induced ischemia." We
are bound by the commission's findings if they are supported by
- 13 -
credible evidence. Lynch v. Lee, 19 Va. App. 230, 234, 450
S.E.2d 391, 393 (1994).
The record also supports the commission's finding that the
medical evidence upon which MWAA relied constituted "mere
general denials" that coronary heart disease is work-related,
see Medlin v. Co. of Henrico Police, 34 Va. App. 396, 542 S.E.2d
33 (2001), and did not rebut the "positive opinions" regarding
causation given by Drs. Schwartz and Shah. Although Dr. Seides
denied any relationship between Lusby's position with MWAA and
his CAD, he made clear that his opinion was based on general
scientific principles. He stated, "Any attempt to make this
association [between Lusby's CAD and his employment at MWAA] is
contrary to our current scientific understanding as to the
genesis of this process."
Dr. Israel similarly observed that occupational stress did
not cause Lusby's coronary heart disease. He explained the
basis of his opinion by referencing the inability of the medical
community to establish a causative relationship between
occupational stress and heart disease. On that ground, he
concluded there was no relationship in Lusby's case.
Finally, Dr. Holland stated in conclusory fashion that
Lusby's employment did not cause his coronary artery disease.
He subsequently explained the basis of his conclusion, stating
that the cause of CAD, which results from atherosclerosis, is
unknown and that non-work-related risk factors present in
- 14 -
Lusby's medical history caused his CAD. He more specifically
explained his opinion by reviewing the literature that addressed
the potential of certain chemicals to cause cardiovascular
disease. Based on that review, he determined that none was a
known agent of such disease. His opinion did not address
Lusby's exposure to smoke in the course of his employment,
however, or the role occupational stress plays in generating the
disease. In short, Dr. Holland concluded that Lusby's CAD was
not caused by his employment by restricting his review to the
potential cardiotoxic effect of certain chemicals while ignoring
the effect that smoke and the stress-related aspects of Lusby's
job can have on cardiovascular health, which both Drs. Schwartz
and Shah found causative.
The statements and opinions of Drs. Seides, Israel and
Holland constitute general rebuttals of "the underlying premise
[and legislatively enacted presumption] of the statute, which
establishes a causal link between stress and heart disease." As
such, they are "not probative evidence for purposes of
overcoming the presumption." Medlin, 34 Va. App. at 407, 542
S.E.2d at 39. "Where the General Assembly has concluded that
there is a causal link between stress and heart disease, it is
not for the commission or the courts to reconsider the issue,
for to do so would defeat the intentions of the legislature."
Id.
- 15 -
MWAA nonetheless contends it proved Lusby's disease was not
caused by his employment because the commission found that
non-work-related risk factors, including obesity, diabetes,
hypertension, elevated cholesterol, smoking history, and a
generally sedentary life-style, caused his coronary artery
disease. 7 MWAA, in essence, reasons that proof of one prong of
the Bass test, i.e. that non-work-related factors caused the
CAD, at once establishes, or is necessarily encompassed within,
the other, i.e. that Lusby's disease was not caused by his
employment. We disagree.
MWAA misapprehends the holding in Bass and the burden of
proof it establishes. In Bass, the Virginia Supreme Court
expressly held that both prongs of the test must be proved,
notwithstanding their seemingly corollary nature. If the
Supreme Court intended that proof of one prong necessarily
proved the other, the Court would not have posited a two-prong
test.
Finally, MWAA contends that our decision in Henrico Co.
Div. of Fire v. Woody, 39 Va. App. 322, 572 S.E.2d 526 (2002),
mandates a different result. The holding in Woody is
inapposite. In Woody, we held that the commission, without
weighing the evidence of causation, concluded that the employer
7
Lusby does not dispute the commission's determination that
non-work-related factors contributed to his coronary artery
disease.
- 16 -
failed to rebut the statutory presumption. We found that the
commission based its conclusion solely on evidence that the
claimant had been exposed to potentially causative disease
factors in the work environment. In the case at bar, the
commission weighed the testimony given by all the physicians as
well as other medical evidence, giving credence and weight to
the opinions of Drs. Schwartz and Shah, and discounting the
"general denials" in the opinions of Drs. Israel, Seides and
Holland. We find no error in that determination.
In summary, we find that the commission's conclusion that
MWAA failed to rebut the statutory presumption set forth in Code
§ 65.2-402 was supported by credible evidence.
II. Refusal of Selective Employment and
Marketing of Residual Capacity
MWAA next contends that the commission erred as a matter of
law in finding that Lusby cured his refusal of selective
employment. It cites as grounds Lusby's failure to contact MWAA
subsequent to his refusal and his decision to limit his annual
income to less than $39,000 per year in order to avoid losing
his pension benefits. MWAA relies on the latter ground as well
to support its contention that Lusby failed to reasonably market
his earning capacity. We find MWAA's arguments to be without
merit. 8
8
Code § 65.2-510 governs the refusal and subsequent cure of
selective employment. The statute was amended in 1995 to allow
for a "partial" cure. It is clear from the full commission's
- 17 -
In deciding whether a claimant has cured a refusal of
employment by obtaining other comparable employment, we examine
the wage secured by the claimant in dissimilar work relative to
the wage offered by the employer and refused by the claimant.
See Virginia Wayside Furniture, Inc. v. Burnette, 17 Va. App.
74, 79, 435 S.E.2d 156, 160 (1993). The record establishes that
the dispatcher position MWAA offered to and refused by Lusby
paid $21,000 a year, or $403.85 per week. The commission
determined that Lusby cured his refusal of selective service in
January 1997, when he earned $620.50 per week, $216.65 more than
the refused weekly wage. We find that, when Lusby earned wages
from dissimilar employment that equaled or exceeded the average
weekly wage of $403.85 he would have earned had he accepted the
employment offered by MWAA, he cured his unjustified refusal of
selective service and was entitled to benefits. 9
In asserting that the wages were not comparable, MWAA
consistently and erroneously uses as its basis for comparison a
opinion that it proceeded under the former statute, which was in
effect at the time of Lusby's injury, because it does not
contemplate or consider partial cure as a basis for recovery in
this case.
9
We note that, based on the record provided on appeal,
Lusby cured his refusal of selective service in 1996, when his
wages first exceeded the wage offered by MWAA. In 1996, Lusby
earned $527.05 per week in his two part-time jobs and by January
1997, he earned $620.50 per week. However, because Lusby failed
to preserve for appeal the full commission's decision for the
March 1996 – January 1997 period, we do not address it on
appeal, affirming only the commission's determination that a
cure occurred in January 1997. See Rule 5A:18.
- 18 -
salary of $39,000. 10 The flaw in MWAA's argument is fatal to its
position on appeal. Neither the evidence, which establishes
that the refused wage was $21,000 per year or $403.85 per week,
nor the relevant law, which premises cure on a comparison of
present and refused wages, support the conclusions urged by
MWAA. See id. 11
MWAA also contends Lusby failed to establish that he
reasonably marketed his residual earning capacity. Wall Street
Deli, Inc. v. O'Brien, 32 Va. App. 217, 220, 527 S.E.2d 451, 453
(2000); National Linen Service v. McGuinn, 8 Va. App. 267, 272,
380 S.E.2d 31, 34 (1989). MWAA contends that Lusby consciously
limited his earnings from the two part-time positions he held
and reasons that his failure to earn more constitutes a failure
to reasonably market his residual earning capacity. The
argument is not supported by either the evidence or the law.
10
That figure, approximately 80% of his pre-injury salary,
reflects the amount Lusby could earn without losing his pension
benefits.
11
The commission also erroneously used $39,000 as the base
line figure against which it compared the wages he earned from
his employment with Gold Line Bus Company and Calvert Memorial
Hospital in its determination of whether Lusby cured his refusal
of MWAA's employment offer and whether he reasonably marketed
his residual working capacity. However, the error is immaterial
to our decision. See Driscoll v. Commonwealth, 14 Va. App. 449,
452, 417 S.E.2d 312, 313 (1992) ("[A]n appellate court may
affirm the judgment of the trial court when it has reached the
right result for the wrong reason.").
- 19 -
"In general, an employee who has reached maximum medical
improvement and remains partially disabled must make a
reasonable effort to market his remaining capacity to work in
order to continue receiving workers' compensation benefits."
Burnette, 17 Va. App. at 78, 435 S.E.2d at 159 (citing McGuinn,
8 Va. App. at 269, 380 S.E.2d at 33). "The determination of
whether a partially disabled employee has adequately marketed
his residual work capacity lies within the factfinding judgment
of the commission, and its decision on that question, if
supported by credible evidence, will not be disturbed on
appeal." O'Brien, 32 Va. App. at 220-21, 527 S.E.2d at 453.
Whether an employee has made a reasonable effort to market his
remaining work capacity is determined by an objective standard
of reasonableness and depends on the particular circumstances of
each situation. McGuinn, 8 Va. App. at 270-72, 380 S.E.2d at
33-34.
In McGuinn, this Court examined the criteria that may be
applied in determining whether an individual has reasonably
marketed residual earning capacity. Citing to a decision in our
sister state of Maine, we said,
[I]n defining what would be considered a
reasonable effort at obtaining employment
. . . the employee must present "some
evidence that he had engaged in a good faith
effort to obtain work within the tolerance
of his physical condition" and has failed to
find a job, either due to his injury or
because no such work was available in the
community.
- 20 -
Id. at 271, 380 S.E.2d at 34 (quoting Dunkin Donuts of America,
Inc. v. Watson, 366 A.2d 1121 (Me. 1976)).
Under the holding in McGuinn, the following factors may be
considered to determine whether a claimant has reasonably
marketed his residual 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. Id. at 272, 380 S.E.2d at 34.
We subsequently established another factor that is
appropriately considered in determining whether a claimant has
reasonably marketed residual earning capacity. See Burnette, 17
Va. App. at 79, 435 S.E.2d at 160. The Burnette Court held
that, when a claimant is willing to accept a position that pays
a wage "comparable" to that which he would have earned had he
accepted the selective employment offered, he has both cured the
unjustified refusal of selective employment and marketed his
residual capacity. Id.
In Burnette, the claimant was offered a job with a
beginning wage of $3.85 per hour for a two-week training period,
after which they would increase his wage to $5.00 to $ 5.50 per
hour. He refused the position and later found a job that paid
- 21 -
$5.45 per hour. In determining that the claimant cured his
unjustified refusal of selective employment, we stated, "the
wage that [claimant] now earns . . . falls within the mid-range
of the projected starting wage [of the refused job] . . . .
Thus, by obtaining employment at a wage that is comparable to
that which was offered him, he has cured his unjustified refusal
of the selective employment that was offered him." Id. at
79-80, 435 S.E.2d at 160. We further stated, "[T]he commission
did not err in finding that [claimant] had cured his prior
unjustified refusal of the suitable employment by obtaining
comparable employment and, thereby, had marketed or made a
reasonable effort to market his residual capacity." Id. at 79,
435 S.E.2d at 160. In short, in such cases the conduct
establishing that a claimant has cured an unjustified refusal of
employment and has reasonably marketed his residual capacity,
are coincident.
The commission determined that Lusby reasonably marketed
his residual work capacity on January 7, 1997, the date on which
he cured his unjustifiable refusal of MWAA's proffered
employment. We find the commission's decision is supported by
credible evidence and is controlled by our decision in Burnette.
The evidence establishes that Lusby's income from dissimilar
employment in January 1997 exceeded by several hundred dollars
the weekly wage he would have earned by accepting the position
offered by MWAA.
- 22 -
Contrary to MWAA's contention, Lusby's failure to contact
MWAA for other available positions or to inquire about positions
with other employers, 12 and his decision to limit his earnings
from dissimilar employment to preserve his retirement benefits,
are of no significance. See Greif Companies v. Sipe, 16
Va. App. 709, 715, 434 S.E.2d 314, 318 (1993) ("What constitutes
a reasonable marketing effort depends on the facts and
circumstances of each case."). Evidence that other positions
were available to him is notably lacking in the record.
Moreover, as a matter of law, Lusby was required to earn wages
comparable to those he would have enjoyed had he accepted MWAA's
proffered employment to entitle him to compensation and nothing
more. See Burnette, 17 Va. App. at 79, 435 S.E.2d at 160.
Here, Lusby's earnings were significantly greater than those he
would have earned in employment offered by MWAA in a position
that was expected to be of limited duration. Under these facts,
it cannot be said that Lusby's decision to limit his inquiries
to MWAA regarding other positions, to limit his job search to
one application with another fire department and to limit his
earnings from dissimilar employment constituted a failure to
reasonably market his residual earning capacity. Thus, we
affirm the commission's decision that Lusby cured his refusal of
light-duty work.
12
Lusby applied for one job, with the Alexandria Fire
Department, but he was not hired.
- 23 -
Conclusion
We hold that the commission did not err in 1) finding that
Lusby's cardiovascular disease is attributable to his
employment, 2) in applying the law applicable to determining
causation, 3) in awarding continued disability benefits based
upon income that Lusby voluntarily limited, or 4) in finding
that Lusby had cured his unjustified refusal to work and had
reasonably marketed his residual capacity. Accordingly, we
affirm.
Affirmed.
- 24 -