Jon Cox v. Virginia Power and VEPCO ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Senior Judge Hodges
JON COX
MEMORANDUM OPINION*
v. Record No. 2976-98-1 PER CURIAM
JUNE 15, 1999
VIRGINIA POWER AND VIRGINIA
ELECTRIC & POWER COMPANY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Gary P. Arsenault; Grey & Arsenault, P.C.,
on brief), for appellant.
(Charles F. Midkiff; Midkiff & Hiner, P.C.,
on brief), for appellees.
Jon Cox contends that the Workers' Compensation Commission
erred in finding he had not made reasonable efforts to market his
residual work capacity from February 12, 1997 and continuing.
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.
To obtain compensation for wage loss, a partially disabled
employee has the burden of proving "he had made a reasonable
effort to procure suitable work but was unable to market his
remaining work capacity." Washington Metropolitan Area Transit
Authority v. Harrison, 228 Va. 598, 601, 324 S.E.2d 654, 656
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
(1985). "In determining whether [an employee] 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." National Linen Serv. v. McGuinn, 8
Va. App. 267, 270, 380 S.E.2d 31, 32 (1989).
In holding that Cox failed to reasonably market his residual
skills, the commission found as follows:
After [Cox] was released to light duty
work, he looked for only two jobs a week
from January 1997 through April 1997, looked
for four jobs a week in May but then did not
look for any more work until November 1997.
He only looked four times in November, did
not look for work in December, looked once
in January 1998, did not look for work in
February or March 1998 and only looked four
times in April.
* * * * * * *
[Cox] voluntarily left two jobs, the
first in November 1996 while earning $500.00
a week and the second in January 1997, while
earning about $400.00. The medical reports
show [Cox] can work as a truck driver and
there are available jobs that pay from
$280.00 to $1,000.00. Although he found
part-time work in May 1997, he only earned
$223.00 a week in 1997 and $183.00 a week in
1998.
The commission's factual findings are amply supported by
the record. Based upon those findings and in considering the
factors set forth in McGuinn, we cannot say as a matter of law
that Cox made a reasonable good faith effort to market his
residual work capacity from February 1997 and continuing.
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For these reasons, we affirm the commission's decision.
Affirmed.
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