W.C. Hall Gen Hauling Inc v. Edward B. Blaine ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
W.C. HALL GENERAL HAULING
TRUCKING, INC. AND LEGION
INSURANCE COMPANY MEMORANDUM OPINION *
PER CURIAM
v. Record No. 0513-97-4 JULY 8, 1997
EDWARD BUTLER BLAINE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(M. Lynn McHale; Siciliano, Ellis, Dyer &
Boccarosse, on brief), for appellants.
(Lawrence J. Pascal; Ashcraft & Gerel, on
brief), for appellee.
W.C. Hall General Hauling Trucking and its insurer
(hereinafter collectively referred to as "employer") contend that
the Workers' Compensation Commission (commission) erred in
finding that Edward Butler Blaine (claimant) proved that he made
a good faith effort to market his residual work capacity between
December 12, 1995 and April 4, 1996. 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. Rule 5A:27.
The standard of review applicable to this case is as
follows:
This appeal does not present a case of
conflicting evidence or a dispute concerning
the commission's findings of fact. When the
issue is the sufficiency of the evidence and
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
there is no conflict in the evidence, the
issue is purely a question of law. This
Court is not bound by the legal
determinations made by the commission. "[W]e
must inquire to determine if the correct
legal conclusion has been reached."
Cibula v. Allied Fibers & Plastics, 14 Va. App. 319, 324, 416
S.E.2d 708, 711 (1992) (quoting City of Norfolk v. Bennett, 205
Va. 877, 880, 140 S.E.2d 655, 657 (1965) (citations omitted)),
aff'd, 245 Va. 337, 428 S.E.2d 905 (1993).
In ruling that claimant proved he made a good faith effort
to market his residual capacity between December 12, 1995 and
April 4, 1996, the commission recited the following facts:
The claimant has worked as a truck
driver for over thirty years. He has an
eighth grade education. He served in the
army and was honorably discharged in 1962.
After he was injured, he returned to work for
his pre-injury employer. When that company
dissolved he found two other jobs on his own
initiative. His medical restrictions include
no lifting over thirty-five pounds and no
repetitive bending.
After he was laid off from Mid-Atlantic
in December, 1995, he began looking for work.
He registered with the Virginia Employment
Commission. He contacted the Department of
Rehabilitation seeking vocational retraining
assistance. He submitted a list of nineteen
companies at which he applied for work and
stated that he contacted seven to nine
employers additionally. He also called
companies listed in a book of trucking
companies, using an 800 number. He looked in
newspaper ads and spoke with friends. He
received initial interest from Alliance, a
tractor-trailer training school, but was
rejected because of insufficient education
after four visits to them. At Rappahannock
Auto, business was too slow to hire him.
Some companies request a 100% medical release
before he could be hired.
The claimant was successful in finding
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employment on April 4, 1996, and he is
currently employed as a driver for an
automobile repossessor. Even after he
obtained work, he continued to look for a
better job.
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, 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). We have discussed factors which the commission
should consider in deciding whether a claimant has made
reasonable good faith efforts to market his remaining 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.
National Linen Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d
31, 34 (1989) (footnotes omitted).
The commission's factual findings are supported by the
record. Based upon these findings, which take into account the
factors set forth in National Linen, we cannot find as a matter
of law that the commission erred in concluding that claimant
proved he made good faith reasonable efforts to market his
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residual capacity.
For these reasons, we affirm the commission's decision.
Affirmed.
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