Washington Metropolitan Area Transit v. Baker ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
WASHINGTON METROPOLITAN AREA
TRANSIT AUTHORITY
MEMORANDUM OPINION*
v. Record No. 2108-99-4 PER CURIAM
FEBRUARY 8, 2000
ALBERTUS BAKER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William T. Kennard; Robert C. Baker; Mell,
Brownell & Baker, on brief), for appellant.
(Lawrence S. Jacobs; Bruce M. Bender; Jacobs,
Abod & Caruso, LLC; Van Grack, Axelson &
Williamowsky, P.C., on brief), for appellee.
Washington Metropolitan Area Transit Authority (employer)
contends that the Workers’ Compensation Commission (commission)
erred in finding that Albertus Baker (claimant) proved that he
adequately marketed his residual work capacity after August 1,
1998. 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.
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,
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
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 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 he made a good faith
effort to market his residual work capacity, the commission
found as follows:
[T]he claimant did prove that he reasonably
marketed his residual work capacity after he
started working for Home Mortgage Center,
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Inc. . . . The claimant made significant
effort to learn the mortgage business and
has been successfully earning substantial
commissions. His wage loss clearly resulted
from his physical inability to perform his
pre-injury bus-driving job. There is no
evidence that the claimant simply accepted a
job below his earning ability. Based on his
work experience, age, and the extent of his
disability, he reasonably marketed his
residual work capacity after August 1, 1998,
and is entitled to partial disability
benefits.
Credible evidence proved that claimant suffers from a
significant disability in his neck and lower back preventing him
from performing his pre-injury job as a bus driver. Claimant,
age forty-nine, whose sole employment for the past twenty-three
to twenty-four years was driving a bus, trained himself and
secured full-time employment in the mortgage industry making
significant income as of August 1, 1998.
Considering the factors set forth in McGuinn, ample
credible evidence in the record supports the commission's
finding that claimant proved he reasonably and adequately
marketed his residual capacity after August 1, 1998. As the
commission aptly stated, "Whether a claimant is entitled to
temporary partial disability benefits depends upon multiple
factors, not simply a comparison between the pre-injury and
post-injury wages."
For these reasons, we affirm the commission's decision.
Affirmed.
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