Melvin K. Blacken v. Newport News Shipbuilding, et ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
MELVIN K. BLACKEN
MEMORANDUM OPINION*
v. Record No. 0106-99-1 PER CURIAM
JUNE 15, 1999
NEWPORT NEWS SHIPBUILDING
AND DRY DOCK COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(John H. Klein; Montagna, Klein & Camden,
L.L.P., on brief), for appellant.
(Christopher R. Hedrick; Mason & Mason, P.C.,
on brief), for appellee.
Melvin K. Blacken (claimant) contends that the Workers'
Compensation Commission (commission) erred in denying his
change-in-condition application seeking an award of temporary
total disability benefits beginning March 3, 1997 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.
A claimant who is released to light-duty work must prove that
he has made a reasonable effort to market his remaining work
capacity during any period for which disability benefits are
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
sought. See Washington Metro. Area Transit Auth. v. Harrison, 228
Va. 598, 601, 324 S.E.2d 654, 655 (1985). What constitutes a
reasonable marketing effort is determined by the facts and
circumstances of each case. See Great Atl. & Pac. Tea Co. v.
Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 100 (1987).
When reviewing the commission's denial of disability benefits, we
view the evidence in the light most favorable to the employer, as
the prevailing party below. See National Linen Serv. v. McGuinn,
8 Va. App. 267, 270, 380 S.E.2d 31, 32 (1989). Unless we can say
that claimant's evidence as a matter of law proved that he
reasonably marketed his residual work capacity, the commission's
finding is conclusive and binding 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, the commission found as
follows:
Blacken retired from the employer in March
1997. Although he looked for work between
March and August 1997, once he started
receiving his social security disability
benefits in August 1997, the claimant
stopped looking for employment and did not
resume his efforts to find employment again
until January 1998. Furthermore, of the
places of employment the claimant personally
visited, none were hiring, and the claimant
admitted that only two of the positions fit
within his physical restrictions. . . .
The claimant also impermissibly restricted
the geographical area of his job search.
Although claimant commuted to work for
twenty-four years to Newport News, the
claimant restricted his job search to areas
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close to his residence and did not look for
work in Newport News.
A claimant does not meet his burden of proving that he made
reasonable efforts to market his residual work capacity where he
confines his job search to work for which he is not qualified by
education, experience, or physical limitations. See Bateman, 4
Va. App. at 467-68, 359 S.E.2d at 102-03. "'[T]he effort to
seek employment will not be deemed reasonable if the claimant
places undue limitations on the kind of work he will accept,
including limitations not justified by the character of his
impairment.'" Id. at 467, 359 S.E.2d at 102 (quoting 2
A. Larson, Workmen's Compensation Law § 57.61(d) (1987)).
Here, the evidence established that claimant confined his
marketing effort almost exclusively to jobs that were not within
his physical limitations. Claimant admitted that his job search
included only two jobs for which he believed he was physically
qualified. Claimant made little or no effort to secure a
sedentary job within his limitations. He also admitted that all
of the positions for which he applied were not hiring. In
addition, claimant confined his job search to the Mathews and
Gloucester geographical areas, when he had worked in Newport
News for at least twenty-four years. He admitted he had made no
attempt to secure work in the Newport News area, although his
ability to drive had not been restricted. The record contains
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no reasonable explanation for why claimant limited his job
search in these respects.
Under the facts and circumstances of this case, we cannot
say as a matter of law that claimant's evidence sustained his
burden of proving that he made a good faith, reasonable effort
to market his residual work capacity.
For these reasons, we affirm the commission's decision.
Affirmed.
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