Raynor Hearandus Hunter v. Newport News Shipbuildin

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
RAYNOR HEARANDUS HUNTER
MEMORANDUM OPINION* BY
v. Record No. 2731-00-1 JUDGE ROBERT J. HUMPHREYS
JUNE 5, 2001
NEWPORT NEWS SHIPBUILDING AND
DRY DOCK COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
John H. Klein (Gregory E. Camden; Montagna,
Klein & Camden, L.L.P., on brief), for
appellant.
Benjamin M. Mason (Mason, Cowardin & Mason,
P.C., on brief), for appellee.
Raynor Hunter appeals a decision of the Virginia Workers'
Compensation Commission denying him temporary total disability
benefits for the period from January 17, 2000 and continuing.
Specifically, Hunter contends that the commission erred in
finding that he failed to market his residual work capacity for
this period of time. Because this opinion has no precedential
value and because the parties are conversant with the facts, we do
not recite them in detail here.
On appeal, "we review the evidence in the light most
favorable to the prevailing party." R.G. Moore Bldg. Corp. v.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
"[T]he fact that contrary evidence may be found in the record is
of no consequence if credible evidence supports the commission's
finding." Roanoke Belt, Inc. v. Mroczkowski, 20 Va. App. 60,
67-68, 455 S.E.2d 267, 270-71 (1995) (citation omitted).
From the period of mid-September to the end of October,
Hunter applied for no new positions, but testified that he went
to approximately 27 establishments to "check up" on the
applications he had submitted during the summer of 1999. Hunter
then ceased all attempts to search for employment three weeks
prior to the beginning of hunting season, which started in
November of 1999. Between January 17, 2000 and the date of the
hearing, January 24, 2000, Hunter submitted approximately six
applications for positions ranging from laborer to stock clerk.
Hunter submitted these applications in the Franklin and Suffolk
areas. Hunter testified that he had no reason to believe these
establishments were hiring, he simply walked into the businesses
and inquired about vacancies. Hunter also testified that he had
no knowledge of whether these potential positions would have
provided work within his physical restrictions.
The commission found that Hunter had failed to make a bona
fide effort to market his residual work capacity beginning
January 17, 2000, as Hunter only applied for employment to
businesses in the Suffolk and Franklin areas, he failed to look
for vacancy listings, he had no information about the positions
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for which he applied, and he had made no effort to find
employment until after his deposition, and one week prior to the
hearing.
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 Companies v. Sipe, 16 Va. App. 709, 715,
434 S.E.2d 314, 318 (1993). The factors the commission should
consider in deciding whether a claimant has made reasonable good
faith efforts to market his or her remaining capacity are:
(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).
We find the commission's decision to be supported by
credible evidence. The commission clearly considered the
evidence and the factors set forth above in determining that
Hunter's effort to seek employment only one week prior to the
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hearing and the narrow parameters of his search, in conjunction
with Hunter's lack of effort to even attempt to locate actual
vacant positions within his physical restrictions, demonstrated
that Hunter had failed to make a bona fide effort to market his
residual employment capacity. Further, contrary to Hunter's
assertion that the commission should not have considered
Hunter's job search, or lack thereof, prior to January 17, 2000,
the date for which he sought benefits to begin, the commission
was entitled to consider all of the evidence in determining
Hunter's intent in conducting his job search. Id.
Based on the above, the decision of the commission is
affirmed.
Affirmed.
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