Wood Vending, Inc. v. Daniel Harold Minesky ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
WOOD VENDING, INC.
AND
PROVIDENCE WASHINGTON INSURANCE COMPANY
MEMORANDUM OPINION *
v. Record No. 1237-95-1 PER CURIAM
NOVEMBER 28, 1995
DANIEL HAROLD MINESKY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William C. Walker; Donna White Kearney; Bradford C.
Jacob; Taylor & Walker, on briefs), for appellants.
(Daniel H. Minesky, pro se, on brief).
Wood Vending, Inc. and its insurer (hereinafter collectively
referred to as "employer") contend that the Workers' Compensation
Commission erred in (1) finding that Daniel Harold Minesky
("claimant") proved that he made a reasonable effort to market
his residual work capacity after May 9, 1994; and (2) considering
certain documents submitted by claimant as after-discovered
evidence. 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. Rule
5A:27.
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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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 Companies v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314,
318 (1993). We have discussed factors which the commission
should consider in deciding whether a claimant has made
reasonable good faith efforts to market his remaining capacity:
(1) the nature and extent of employee's
disability; (2) the employee's training, age,
experience, and education; (3) the nature and
extent of employee's job search; (4) the
employee's intent in conducting his job
search; (5) the availability of jobs in the
area suitable for the employee, considering
his disability; and (6) any other matter
affecting employee's capacity to find
suitable employment.
National Linen Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d
31, 34 (1989) (footnotes omitted). In reviewing the commission's
findings, "we view the evidence in the light most favorable
to . . . the party prevailing before the commission." Id. at
270, 380 S.E.2d at 33. "However, where, as here, there is no
conflict in the evidence as to the relevant factors, the question
of sufficiency is one of law." Sipe, 16 Va. App. at 716, 434
S.E.2d at 318.
In awarding temporary total disability benefits to Minesky,
the commission found that Minesky made a reasonable effort to
market his remaining capacity. We cannot say that the commission
erred as a matter of law in making this determination. The
evidence before the deputy commissioner and the full commission
2
showed that Minesky contacted at least thirty potential employers
between May 19, 1994 and September 28, 1994. He also registered
with the Virginia Employment Commission ("VEC") and the West
Virginia Employment Commission. The commission reasonably
inferred from Minesky's testimony that he satisfactorily
documented potential employment contacts in order to continue to
receive unemployment benefits in West Virginia. 1
Taking into account this undisputed evidence, Minesky's
ninth grade education, and his lifting restriction which
precludes most employment as a welder or mechanic, we find
sufficient credible evidence exists to support the commission's
finding that Minesky made a reasonable effort to market his
residual work capacity.
For these reasons, we affirm the commission's decision.
Affirmed.
1
The commission did not indicate in its review opinion that
it relied upon the VEC job contact forms, Minesky's
correspondence with the Virginia Department of Labor and
Industry, or Dr. Gold's November 7, 1994 work excuse to support
its finding on the marketing issue. Accordingly, employer's
second question presented is without merit.
3