Arnold H. Holeman, Jr. v. Harold Holeman ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bumgardner
Argued at Richmond, Virginia
ARNOLD HAROLD HOLEMAN, JR.
MEMORANDUM OPINION* BY
v. Record No. 3074-00-2 JUDGE JAMES W. BENTON, JR.
AUGUST 28, 2001
HAROLD HOLEMAN, GRANITE STATE
INSURANCE COMPANY AND AMERICAN
INTERNATIONAL ADJUSTMENT COMPANY, INC.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Andrew J. Reinhardt (Kerns, Kastenbaum &
Reinhardt, on briefs), for appellant.
S. Vernon Priddy III (Patsy L. Mundy; Sands
Anderson Marks & Miller, on brief), for
appellees.
The sole issue raised by this appeal is whether the
Workers' Compensation Commission erred in finding that Arnold
Harold Holeman, Jr., did not use reasonable efforts to market
his residual work capacity. We affirm the commission's
decision.
I.
For over twenty years, Holeman was the sole proprietor of a
construction business. His work primarily consisted of
residential remodeling projects, including trimming, siding, and
building Florida rooms and decks. On October 7, 1998, Holeman
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
sustained injury to his neck, back and shoulder in an automobile
accident. Holeman filed a claim for benefits and was awarded,
by stipulation and a consent order, temporary total disability
benefits for the period of October 8, 1998 through February 11,
1999, and temporary partial disability benefits from February
12, 1999 through July 15, 1999. Holeman later filed a claim
alleging a change in condition and seeking temporary total and
temporary partial disability benefits from July 9, 1999 and
continuing.
At the evidentiary hearing, Holeman testified that he was
unable to work for eight months after the automobile accident.
He initially returned to employment by working for his friends,
where he earned "cash" money performing light duty work. Once
he "could get back on [his] feet," he restarted his own
construction business. By that time, he had lost the business
connections he had established through other contractors,
especially for work involving the building of Florida rooms and
decks. Holeman testified that he has tried to re-establish his
prior contacts, but that he has "had to change [his] type of
work" and now does trim and siding work. Holeman said he has
also modified his business to better suit the limitations of his
injuries and does "a lot of subcontracting."
Holeman has been averaging one job per week and testified
that he will be able to earn a "decent" wage in the next six to
twelve months. According to his records, his business
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experienced a loss of about $23,000 for the period of July 9,
1999 through April 22, 2000. Holeman testified that he earned
$48.13 in August 1999, the only month which his business did not
reflect an overall loss. He explained that although he has
earned no money, he has "bought quite a bit of the tools that
[he] need[s] to do . . . the work . . . just to stay in the
business until [he] get[s] back on [his] feet."
The deputy commissioner ruled that Holeman was making
adequate efforts to market his residual earning capacity and
awarded him compensation. On review, the commission found that
Holeman has "work skills that should permit him to earn
significant wages in the construction industry." The commission
found it unreasonable that Holeman did not seek suitable
employment from other employers after his self-employment proved
to be unprofitable. The commission reversed the award. Holeman
appeals from that decision.
II.
An employee who seeks an award for temporary partial
disability benefits has the burden of proving that he or she
made "a 'reasonable effort' to market his [or her] remaining
work capacity." National Linen Serv. v. McGuinn, 8 Va. App.
267, 269, 380 S.E.2d 31, 33 (1989). We reiterated in McGuinn
the rule that "'[t]he employee must . . . exercise reasonable
diligence in seeking employment, and what is reasonable in a
given case will depend upon all the facts and circumstances.'"
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8 Va. App. at 270-71, 380 S.E.2d at 33 (quoting Great Atlantic &
Pacific Tea Co. v. Bateman, 4 Va. App. 459, 467, 359 S.E.2d 98,
102 (1987)).
Holeman contends that his case presents a novel issue
because he was returning to self-employment. Based upon this
assertion, he argues that we should apply a standard less
deferential to the commission's findings. We decline to
establish a different standard for self-employed persons because
the issue confronting the commission is the same for all
employees: Were the efforts of the employee to market his or
her residual work capacity reasonable under the circumstances,
including circumstances of self-employment?
In applying the McGuinn rule, the commission clearly
engaged in a fact-finding task. According to well established
appellate principles, we will uphold "[f]actual findings of the
. . . Commission . . . if supported by credible evidence."
James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382
S.E.2d 487, 488 (1989). Furthermore, we must view the evidence
in the light most favorable to the party prevailing below to
determine if credible evidence supports the findings. Crisp v.
Brown's Tysons Corner Dodge, 1 Va. App. 503, 504, 339 S.E.2d
916, 916 (1986). So viewed, the evidence proved that Holeman
initially returned to employment by working for his friends in
the construction industry for "cash" wages. Since that time, he
has worked to re-establish his own business. The record
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contains credible evidence to support the commission's findings
that Holeman's "physical work restrictions are not severe" and
that his work skills would "permit him to earn significant
wages." The evidence also proved, and the commission found,
that Holeman "has not even attempted to locate other higher
paying work." Holeman concedes on brief "that he did not
job-hunt."
The record supports the commission's finding that Holeman
has used his earnings to invest in tools and equipment in an
attempt "to reorganize his unprofitable construction business."
Credible evidence also supports the commission's finding that
Holeman acted unreasonably when he "did not seek suitable
employment from other employers, particularly after his
self-employment activities . . . failed to generate any profit
[and] lost considerable amounts of money for an extended period
of time." In making that finding, the commission appropriately
considered Holeman's "age, skills, work history, and minimal
restrictions." See McGuinn, 8 Va. App. at 272, 380 S.E.2d at
34.
In addition, the commission reviewed Holeman's records and
found "it speculative at best . . . whether [Holeman's]
construction business will ever generate additional revenues."
The record supports the commission's finding that Holeman was
using "his company's revenues for capital investment and payment
of salaries to other employees rather than paying himself." As
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the commission found, Holeman made the decision to limit his
wages "by continuing with unprofitable, if not failing,
self-employment activity."
Holeman contends the commission erred in ruling that ARA
Services v. Swift, 22 Va. App. 202, 468 S.E.2d 682 (1996), was
not applicable to his circumstances. In that case, a disabled
employee returned to her pre-injury employment, but could only
perform light-duty work. She worked fewer hours a week and
therefore earned less money. Id. at 204, 468 S.E.2d at 683. We
affirmed the commission's ruling that the employee had
adequately marketed her residual work capacity. Credible
evidence established that the employee acted reasonably because
she might have lost benefits if she had refused to accept the
light-duty position. Id. at 207, 468 S.E.2d at 684.
We agree with the commission that Holeman's case is
distinguishable because his wage loss results "from a
combination of the loss of business referrals and his
reinvestment in his business." Credible evidence supports the
commission's finding that his wage loss does not result "from
part-time employment or from his acceptance of a light duty
position offered by his pre-injury employer (himself)." We
hold, therefore, that the evidence supports the commission's
ruling that Holeman's decision to forego employment as a
construction worker and, instead, to attempt to re-establish his
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business was not, under these circumstances, a reasonable effort
to market his work capacity.
Accordingly, we affirm the commission's decision.
Affirmed.
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