Thanh Tu Tran v. Browns Servs and Ohio Casualty Ins ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
THANH TU TRAN
MEMORANDUM OPINION *
v. Record No. 1037-97-4 PER CURIAM
SEPTEMBER 9, 1997
BROWN'S SERVICES, INC. and
OHIO CASUALTY INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Thomas W. Ullrich, on briefs), for
appellant.
(Dawn E. Boyce; Trichilo, Bancroft, McGavin,
Horvath & Judkins, P.C., on brief), for
appellees.
Thanh Tu Tran (claimant) appeals a decision of the Workers'
Compensation Commission (commission) denying him an award of
temporary total disability benefits after November 2, 1994.
Claimant contends that the commission erred in finding that he
(1) was released to return to light-duty work as of November 2,
1994, and (2) failed to prove that he made a good faith effort to
market his residual work capacity after November 2, 1994.
Finding no error, we affirm the commission's decision.
I.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Unless we can say as a matter of law that claimant's evidence
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
sustained his burden of proof, the commission's findings are
binding and conclusive upon us. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In ruling that claimant was released to light-duty work and
had an obligation to seek work within his restrictions, the
commission relied upon the November 2, 1994 "Medical Report for
General Relief and Aid to Families with Dependent Children" form
completed by Dr. Charles H. Emich, an orthopedic surgeon, who
began treating claimant on August 31, 1994. On the form, Dr.
Emich released claimant to light-duty work, with restrictions
against lifting over ten pounds and standing or walking for more
than one hour per day. In a contemporaneous medical report, Dr.
Emich opined that claimant should be considered for retraining
for a sedentary or light-duty job. Other evidence refuting total
disability included Dr. Emich's opinion of March 8, 1995,
reiterating his belief that claimant should be considered for
retraining in a sedentary occupation. Also in March 1995,
Dr. John A. Bruno examined claimant at employer's request and
agreed that claimant was capable of performing light-duty work
within certain restrictions. Finally, the evidence shows that
claimant in fact worked in a part-time sedentary job for several
months in 1995 and again in 1996 and that he was able to perform
that work as long as he could change position periodically during
his shift.
The medical records and opinions of Drs. Emich and Bruno,
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combined with the evidence of claimant's actual employment,
support the commission's decision. Accordingly, we cannot say as
a matter of law that claimant's evidence sustained his burden of
proof.
II.
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 Cos. v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318
(1993).
Although claimant presented evidence of brief periods of
part-time work, he provided no evidence to show that he made a
good faith effort to find suitable employment within his
restrictions. Thus, the commission did not err in concluding
that he had not adequately marketed his residual work capacity.
For these reasons, we affirm the commission's decision.
Affirmed.
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