CVS Distribution Center/CVS Corp. v. Deloris Battle ( 1999 )


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  •                       COURT OF APPEALS OF VIRGINIA
    Present:    Judges Elder, Bumgardner and Lemons
    CVS DISTRIBUTION CENTER/CVS CORPORATION
    MEMORANDUM OPINION*
    v.   Record No. 1993-99-2                         PER CURIAM
    DECEMBER 21, 1999
    DELORIS ANNE BATTLE
    FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
    (Ralph L. Whitt, Jr.; Williams, Lynch &
    Whitt, on brief), for appellant.
    (Wesley G. Marshall, on brief), for appellee.
    CVS Distribution Center/CVS Corporation (employer) contends
    that the Workers' Compensation Commission (commission) erred in
    finding that (1) employer failed to prove that it made a bona
    fide offer of selective employment to Deloris Anne Battle
    (claimant); (2) employer failed to prove that claimant
    unjustifiably refused selective employment; and (3) claimant
    proved that she adequately marketed her 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.
    I. and II.
    On appeal, we view the evidence in the light most favorable
    to the prevailing party below.     See R.G. Moore Bldg. Corp. v.
    * Pursuant to Code § 17.1-413, recodifying Code
    § 17-116.010, this opinion is not designated for publication.
    Mullins, 
    10 Va. App. 211
    , 212, 
    390 S.E.2d 788
    , 788 (1990).     "To
    support a finding of refusal of selective employment 'the record
    must disclose (1) a bona fide job offer suitable to the
    employee's capacity; (2) [a job offer that was] procured for the
    employee by the employer; and (3) an unjustified refusal by the
    employee to accept the job.'"    James v. Capitol Steel Constr.
    Co., 
    8 Va. App. 512
    , 515, 
    382 S.E.2d 487
    , 489 (1989) (quoting
    Ellerson v. W.O. Grubb Steel Erection Co., 
    1 Va. App. 97
    , 98,
    
    335 S.E.2d 379
    , 380 (1985)).
    In holding that employer failed to prove that it made a
    bona fide offer of light-duty employment to claimant, the
    commission found as follows:
    The claimant's testimony that [Mark] Ball
    failed to give her any job specifics, such
    as when, what time, and what job
    description, was not refuted. There is no
    evidence that she received any information
    about the job or a written approval from Dr.
    [Thorp J.] Davis. The employer submitted a
    letter from its operations manager dated
    June 25, 1998, stating that the claimant was
    terminated for failing to show on June 22,
    1998, "to an alternative duty assignment
    . . ." This evidence does not prove a
    legitimate offer. Further, the claimant
    testified to her confusion about returning
    to light duty because her written work
    excuse was through June 30, 1998, which
    confusion is understandable. At most, the
    record establishes that the employer
    communicated an offer to Dr. Davis and that
    he talked about light duty with [claimant].
    Yet, he was the treating physician, not an
    employer representative.
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    Claimant's unrefuted testimony supports the commission's
    finding that employer never offered claimant a light-duty job in
    June 1998.    While employer may have made Dr. Davis aware of such
    a job, employer never specifically communicated a job offer to
    claimant, whose treating physician had left her with the
    impression that she was excused from work until at least
    June 30, 1998.
    Based upon claimant's testimony, the commission could
    reasonably conclude that employer did not make a bona fide offer
    of selective employment to claimant which she could have either
    accepted or refused on June 22, 1998.    Accordingly, we cannot
    find as a matter of law that employer sustained its burden of
    proving that it made a bona fide offer of selective employment
    to claimant.   Based upon our ruling on this issue, we need not
    address employer's contention that claimant unjustifiably
    refused light-duty employment.
    III.
    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,
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    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 she made a good faith
    effort to market her residual work capacity, the commission
    found as follows:
    Regardless of [claimant's] disputed
    light- or regular-duty status, she began
    searching for alternative employment on
    June 27, 1998, through the newspaper,
    temporary agencies, and the VEC. The
    claimant's job search list reflects over 60
    employers contacted and includes some
    repeated attempts and filings of
    applications. Considering her age, the
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    extent and nature of her injury, her
    experience, and her eventual success in
    getting a new job, we find that she
    adequately marketed. Contrary to employer's
    argument, the duty to market does not
    require an injured claimant to seek
    employment from her previous employer.
    Claimant's testimony and the documentary evidence submitted
    by her detailing her job contacts constitute credible evidence
    to support the commission's factual findings, which are binding
    on appeal.    Based upon those findings, the commission did not
    err in holding that claimant proved she adequately marketed her
    residual capacity, applying the guidelines enumerated in
    McGuinn.
    For these reasons, we affirm the commission's decision.
    Affirmed.
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