Fairfax School Board v. Cynthia H. Nolden-Thompson ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Clements and Senior Judge Overton
FAIRFAX COUNTY SCHOOL BOARD
MEMORANDUM OPINION*
v. Record No. 0687-03-3 PER CURIAM
JULY 22, 2003
CYNTHIA H. NOLDEN-THOMPSON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Michael N. Salveson; Hunton & Williams LLP,
on briefs), for appellant.
(Linda D. Slough; Chandler, Franklin &
O'Bryan, on brief), for appellee.
Fairfax County School Board (employer) contends the
Workers' Compensation Commission erred in finding that (1)
Cynthia H. Nolden-Thompson (claimant) proved that she made a
reasonable effort to market her residual work capacity after she
moved from Virginia to Hartsel, Colorado; and (2) her
self-imposed one-hour driving restriction was reasonable. Upon
reviewing the record and the parties' briefs, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
the commission's decision. Rule 5A:27.
Where an employee's disability is
partial, to establish his entitlement to
benefits, he must prove that he made a
reasonable effort to market his residual
work capacity. In determining whether a
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
partially disabled employee has adequately
marketed his residual work capacity, the
commission should consider the following
criteria:
(1) the nature and extent of
the employee's disability;
(2) the employee's training,
age, experience and education;
(3) the nature and extent of
the employee's job search effort;
(4) the employee's intent in
conducting his job search;
(5) the availability in the
area of jobs suitable for the
employee, considering his
disability; and
(6) any other matter
affecting the employee's ability
to find suitable employment.
The determination of whether a
partially disabled employee has adequately
marketed his residual work capacity lies
within the fact finding judgment of the
commission, and its decision on that
question, if supported by credible evidence,
will not be disturbed on appeal. However,
that decision, to be affirmed, must be based
upon credible evidence.
Wall Street Deli, Inc. v. O'Brien, 32 Va. App. 217, 220-21, 527
S.E.2d 451, 453 (2000) (citations omitted).
In affirming the deputy commissioner's decision that
claimant proved "based upon all the surrounding circumstances,
[that her] marketing efforts were reasonable," the commission
found as follows:
The claimant submitted evidence of her
attempts to find light-duty employment
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within one hour of her residence. She
contacted various businesses and re-checked
with employers for potential openings. The
claimant read newspaper ads, completed
applications, and distributed her resume.
She participated in childcare classes and
sought funds to open a daycare center. As
noted by the Deputy Commissioner, the
claimant sustained an injury to her right
upper extremity that resulted in a 25
percent permanent impairment and ongoing
light-duty restrictions.
It is undisputed that the claimant
currently lives in a more rural area than
she did pre-injury. While this factor
should not be the only grounds to support an
otherwise inadequate marketing effort, her
employment search shows that she tried to
find a job within a reasonable geographic
area around her home. The claimant took
courses and applied for grants to create an
employment opportunity. Her job search
included potential employers within an
hour's distance of her home. This is not
unreasonable, especially considering the
claimant's previous commutes while working
in Virginia.
The commission, as fact finder, weighed the evidence in
light of the factors set forth in Wall Street Deli, and
concluded that claimant made reasonable efforts to market her
residual work capacity. Claimant's testimony, coupled with her
documentary evidence and the medical records, provides credible
evidence to support the commission's factual findings. Because
credible evidence supports the commission's decision, we will
not disturb it on appeal.
Employer also argues that the commission erred in
concluding that claimant's job search within one-hour's drive of
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her home in Hartsel, Colorado constituted a reasonable
geographic area. We disagree.
Credible evidence, which established claimant's relocation
to a rural area in Colorado, the nature of her injury and her
physical restrictions, and the twenty-five percent permanent
partial impairment of her right upper extremity, supports the
commission's inference that it was reasonable for her to limit
her job search to an area within one-hour's drive of her home.
For these reasons, we affirm the commission's decision.
Affirmed.
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