Lanny Lee Midkiff, Jr. v. Hampton Rds Sanitation,et ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Lemons
LANNY LEE MIDKIFF, JR.
MEMORANDUM OPINION*
v. Record No. 1554-99-1 PER CURIAM
NOVEMBER 2, 1999
HAMPTON ROADS SANITATION DISTRICT
AND
MANUFACTURERS ALLIANCE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Benjamin M. Mason; Lexine D. Walker; Mason,
Cowardin & Mason, on brief), for appellant.
(Richard E. Garriott, Jr.; Clarke, Dolph,
Rapaport, Hardy & Hull, P.L.C., on brief),
for appellees.
Lanny Lee Midkiff, Jr. (claimant) contends that the
Workers' Compensation Commission (commission) erred in finding
that he was not entitled to an award of temporary partial
disability benefits subsequent to August 25, 1996 on the ground
that he failed to reasonably market his residual work capacity.
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 determining whether a claimant has made a reasonable
effort to market his remaining work capacity, we view the
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
evidence in the light most favorable to . . . the prevailing
party before the commission." National Linen Serv. v. McGuinn,
8 Va. App. 267, 270, 380 S.E.2d 31, 32 (1989). A claimant has
the burden of proving entitlement to benefits and that he made a
reasonable effort to procure suitable work and to market his
remaining work capacity. See Great Atl. & Pac. Tea Co. v.
Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 100 (1987). Unless
we can say as a matter of law that claimant's evidence sustained
his burden of proof, the commission's findings are binding and
conclusive upon us. See Tomko v. Michael's Plastering Co., 210
Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In denying claimant's application for temporary partial
disability benefits, the commission found as follows:
The claimant's physical work restrictions
are not severe, and the claimant has a wide
range of marketable work skills. He
acknowledged that there were many types of
jobs which would be within his work
restrictions. Aside from his attempt to
start his own business, the claimant has
made almost no effort to otherwise market
his residual work capacity.
The claimant had very little income
from his self-employment in 1996. In 1997,
he averaged approximately $127.92 per week.
In 1998, he earned approximately $151.67 per
week. Those weekly earnings are below
minimum wage, and are less than half of his
pre-injury average weekly wage of $332.14.
* * * * * * *
[W]e are not willing to accept the
claimant's earnings from his self-employment
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as reflecting his actual wage earning
capacity. When considering factors such as
his age, education, skills, work history,
and minimal restrictions, we find it
unreasonable that the claimant did not seek
suitable employment from other employers.
The commission fully considered the factors set out in
National Linen, 8 Va. App. at 272-73, 380 S.E.2d at 34-35, and
found that claimant did not meet his burden of proving that he
made a reasonable effort to market his remaining work capacity.
The commission's findings are amply supported by the record.
In light of claimant's minimal physical restrictions and
the undisputed evidence that he failed to pursue numerous job
opportunities available to him, we cannot find as a matter of
law that he made a good faith reasonable effort to market his
residual capacity.
For these reasons, we affirm the commission's decision.
Affirmed.
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