Herman's Sporting Goods v. Susan Thurmond ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
HERMAN'S SPORTING GOODS, INC.
AND
ZURICH INSURANCE COMPANY MEMORANDUM OPINION *
PER CURIAM
v. Record No. 2206-95-1 APRIL 9, 1996
SUSAN THURMOND
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Joseph C. Veith, III; Montedonico, Hamilton
& Altman, on briefs), for appellants.
(Leon R. Sarfan; Sarfan & Nachman, on brief),
for appellee.
Herman's Sporting Goods, Inc. and its insurer (jointly
referred to herein as employer) contend that the Workers'
Compensation Commission (commission) erred in finding that Susan
Thurmond's (claimant) two jobs were substantially similar for the
purposes of calculating her average weekly wage. Pursuant to
Rule 5A:21(b), claimant presents the additional question of
whether the commission erred in denying her compensation benefits
after July 17, 1994 because she failed to reasonably market her
residual work capacity. Upon reviewing the record and the briefs
of the parties, we conclude that employer's appeal and claimant's
cross-error are without merit. Accordingly, we summarily affirm
the commission's decision. Rule 5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I. Average Weekly Wage
"Virginia follows the majority rule that when an employee is
injured on one job while in concurrent employment, the average
weekly wage compensated is based on the combined earnings of both
jobs if, but only if, the employments are related or similar."
County of Frederick Fire and Rescue v. Dodson, 20 Va. App. 440,
443, 457 S.E.2d 783, 784 (1995).
Where, in cases like this one, all of a
claimant's duties and skills in one job are
utilized in the other job, which has a wider
scope of employment, the general class of
employment approach, focusing on the primary
mission of an employee in both jobs, provides
a more rational analysis for determining
whether two employments are so related as to
conclude they are substantially similar.
Id. at 445, 457 S.E.2d at 785.
Claimant's testimony established that her job as an
assistant store manager for employer and her job as a salesperson
for Michael's Crafts and Floral Warehouse (Michael's) involved
similar duties of waiting on and selling to customers, customer
service, and stocking merchandise. Claimant's job for employer
required her to be on her feet seven hours out of an eight-hour
day. Claimant stated that her job duties for employer were
similar to her duties for Michael's. While claimant did perform
supervisory duties for employer, which she did not perform for
Michael's, her testimony supports the conclusion that the primary
mission of both jobs was retail sales and merchandising. Thus,
not only were all of claimant's skills as a salesperson for
2
Michael's utilized in her job as an assistant manager for
employer, but both employments were of the same general class,
i.e., retail sales. Claimant's testimony provides credible
evidence to support the commission's decision that her job for
employer was substantially similar to her job at Michael's.
Accordingly, the commission did not err in combining the wages
she earned in both jobs to determine her average weekly wage.
II. Marketing
On appeal, we view the evidence in the light most favorable
to the party prevailing below. The Greif Companies v. Sipe, 16
Va. App. 709, 716, 434 S.E.2d 314, 318 (1993). 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. 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." Sipe, 16 Va.
App. at 715, 434 S.E.2d at 318. Unless we can say as a matter of
law that claimant's evidence sustained her burden of proof, the
commission's findings are binding and conclusive upon us. Tomko
v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833,
835 (1970).
The undisputed medical evidence showed that, at all times
after March 21, 1994, claimant was released to perform light-duty
work. Claimant worked in a light-duty position for employer
3
until July 17, 1994, when the store closed for economic reasons.
The commission denied compensation benefits to claimant after
July 17, 1994 on the ground that she did not prove that she made
a reasonable effort to market her residual work capacity after
that date.
Although claimant testified that she registered with the
Virginia Employment Commission, met with one employer per week,
and sent out resumes to potential employers, she did not provide
evidence of specific jobs applied for or potential employers
contacted or the dates of those contacts or applications. In
addition, she ultimately accepted a part-time job over a
full-time position, for reasons unrelated to her compensable
injury. The full-time job would have paid a higher average
weekly wage. Based upon claimant's failure to document her job
search, the commission, in its role as fact finder, was entitled
to give little weight to claimant's testimony concerning her
marketing efforts. Accordingly, based upon this record, we
cannot find as a matter of law that claimant met her burden of
proving entitlement to compensation benefits after July 17,
1
1994.
For the stated reasons, we affirm the commission's decision.
Affirmed.
1
Claimant did not appeal the commission's ruling that she
did not make a reasonable effort to market her residual capacity
after she resigned from Michael's in March 1994. Accordingly, we
need not address this issue on appeal.
4