ABB Paint Finishing and Birmingham Fire v. Henley ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Coleman
Argued at Salem, Virginia
ABB PAINT FINISHING and
BIRMINGHAM FIRE INSURANCE
COMPANY OF PENNSYLVANIA
MEMORANDUM OPINION * BY
v. Record No. 0055-97-3 JUDGE SAM W. COLEMAN III
OCTOBER 14, 1997
BURLEY W. HENLEY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
M. Lanier Woodrum (Wooten & Hart, P.C., on
brief), for appellants.
Helen J. Spence (Beller & Spence, P.C., on
brief), for appellee.
In this appeal from the Workers' Compensation Commission,
ABB Paint Finishing (employer) contends that the commission erred
in finding that Burley W. Henley (claimant) made a reasonable
effort to market his remaining work capacity thereby entitling
him to temporary total disability benefits. Specifically, the
employer asserts that the claimant's efforts to market his
residual capacity could not have been reasonable, as a matter of
law, because he restricted his job search to sheet metal work,
which was the work that he was considered disabled from
performing. Therefore, the employer argues, he was searching
only for a job that he was not qualified to perform. Finding no
error, we affirm the commission's decision.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
In order to qualify for continuing disability benefits, a
claimant who has reached maximum medical improvement but remains
partially disabled has a duty to make a reasonable effort to
market his residual work capacity. National Linen Serv. v.
McGuinn, 8 Va. App. 267, 269, 380 S.E.2d 31, 33 (1989). The
burden is on the claimant to show that he has made a reasonable
effort to obtain work but has been unable to do so. 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.
Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359
S.E.2d 98, 100 (1987).
"In determining whether a claimant has made a reasonable
effort to market his remaining work capacity, we view the
evidence in the light most favorable to the prevailing party
before the commission." McGuinn, 8 Va. App. at 270, 380 S.E.2d
at 33. The commission's factual findings will be upheld if
supported by credible evidence in the record. Trammell Crow Co.
v. Redmond, 12 Va. App. 610, 614, 405 S.E.2d 632, 635 (1991).
We said in dicta in McGuinn, 8 Va. App. at 272 n.3, 380
S.E.2d at 34 n.3, that an example of where "a claimant would not
be acting in good faith [would be] if he or she only applied for
jobs similar to the previous employment, for which the claimant
is obviously disabled and, therefore, would never be hired."
That situation does not appertain in this case. Although the
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claimant was deemed medically disabled from performing a sheet
metal job, he had been performing the job for his employer at the
time he was laid off. Thus, despite his partial disability, the
commission could find that he was making a good faith effort to
find the work that he was qualified to do by training and had
recently performed. There was no evidence that the claimant's
efforts were not in good faith, that he was not willing to take a
sheet metal job if one was offered to him, that he used his
disability to discourage potential employers from offering him a
job, or that he would not be able to physically perform the job
despite his partial disability, as he had with the employer.
Thus, the commission could find that the claimant was not
limiting his job search to work "for which [he] is obviously
disabled and, therefore, would never be hired." Id.
Here, credible evidence supports the commission's finding
that Henley made a reasonable effort under the circumstances to
market his residual work capacity. The forty-eight-year-old
claimant, who had an eighth grade education, had worked for 22
years as a sheet metal journeyman. After being laid off by the
employer, for whom he had returned to work as a sheet metal
worker, he registered with the Virginia Employment Commission
(VEC) and searched the classified ads for jobs as a sheet metal
worker. He testified that he also registered with his union's
business agent which is the primary way sheet metal workers find
employment. He testified that sheet metal workers are rarely
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hired through employment advertisements or direct contact. He
acknowledged that he restricted his job search in the time
following his layoff to sheet metal work, but neither the VEC,
nor the classified ads produced jobs suitable to his skills. The
claimant obtained a job as a sheet metal worker through the union
business agent within three months of being laid off.
Considering the claimant's age, limited education, work
experience, specialized job skills, lack of other training,
physical restrictions, and the fact that he was undergoing
physical therapy after being laid off, we cannot say that the
claimant's effort to market his residual work capacity was not
reasonable as a matter of law. Although the claimant restricted
his job search to sheet metal work for which he was qualified by
training, a job which he obtained within three months, the
commission did not err in finding his efforts reasonable under
the circumstances. Because credible evidence supports the
commission's finding that the claimant made reasonable efforts to
market his residual capacity, we affirm.
Affirmed.
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