Bagby Electric of VA v. William B. Clark

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Annunziata
Argued at Richmond, Virginia
BAGBY ELECTRIC OF VIRGINIA, INC.,
MERCHANTS OF VIRGINIA GROUP
SELF-INSURANCE ASSOCIATION AND
TRIGON ADMINISTRATORS
MEMORANDUM OPINION * BY
v. Record No. 1069-97-2 JUDGE JERE M. H. WILLIS, JR.
NOVEMBER 25, 1997
WILLIAM BARRY CLARK
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Bradford C. Jacob (R. Temple Mayo; Taylor &
Walker, P.C., on brief), for appellants.
Laura Ann McDonald (Geoffrey R. McDonald,
P.C., on brief), for appellee.
On appeal, Bagby Electric of Virginia, Inc., Merchants of
Virginia Group Self-Insurance Association and Trigon
Administrators (Bagby) contend that the Workers' Compensation
Commission erred as a matter of law in finding that William Barry
Clark adequately marketed his residual work capacity. We
disagree and affirm the award.
On January 18, 1994, Clark suffered a compensable industrial
injury. At the time of the accident, Clark was forty-three years
old and was employed by Bagby as a journeyman electrician. His
educational background included high school and one-and-a-half
years of college. His employment history included bagging
groceries, delivering newspapers, cutting meat, selling
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
automobile parts and service in the United States Army.
In August, 1995, after receiving medical treatment, Clark
returned to light duty work at Bagby. He was laid off in
January, 1996. On July 1, 1996, he began looking for a position
that "didn't involve a lot of lifting, that would also allow
[him] to kind of sit, and stand, or move around when [he]
experienced discomfort."
Between July 1, 1996, and August 9, 1996, Clark contacted
thirty-six employers. He made those contacts without prior
knowledge of any specific job openings, either while he was
shopping or while actively searching for a job. The prospective
employers included grocery stores, pharmacies, auto parts and
hardware stores, bakeries, and general stores. If a prospective
employer expressed interest, Clark explained his physical
limitations. From those contacts, Clark completed one job
application, at an auto parts store.
Based upon Clark's level of education and upon his ignorance
of job opportunities at the contacted businesses, the deputy
commissioner ruled that Clark had failed to market his residual
capacity adequately. The full commission reversed, ruling that
the uncontradicted evidence "reflected that [Clark] commenced a
concerted and good faith effort" in seeking a job.
To continue to receive benefits under the Workers'
Compensation Act, an injured employee must make reasonable
efforts to market his or her remaining work capacity. Virginia
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Wayside Furniture, Inc. v. Burnette, 17 Va. App. 74, 78, 435
S.E.2d 156, 159 (1993). In National Linen Serv. v. McGuinn, 8
Va. 267, 380 S.E.2d 31 (1989), we held that:
[I]n deciding whether a partially disabled
employee has made a reasonable effort to find
suitable employment commensurate with his
abilities, the commission should consider
such factors as: (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.
Id. at 272, 380 S.E.2d at 34 (footnotes omitted). Thus, the
reasonableness of a claimant's job search depends upon the facts
and circumstances of each case. Great Atl. & Pac. Tea Co. v.
Bateman, 4 Va. App. 459, 467, 359 S.E.2d 98, 102 (1987).
Clark testified that between July 1, 1996, and August 9,
1996, he interviewed thirty-six prospective employers concerning
job opportunities. He considered himself "trainable" and sought
primarily a sales position. While he filled out only one job
application, "the record does not suggest that employers accept
applications from a person seeking light duty employment . . . ."
Brown v. Tidewater Constr. Co., 19 Va. App. 676, 679, 454 S.E.2d
42, 43 (1995). Clark testified also that he planned to follow up
with several of the prospective employers regarding possible
employment opportunities.
Bagby contends that "cold calls," or job interviews without
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an appointment, constituted an unacceptable method of marketing
Clark's residual capacity to work. However, the record is silent
as to the efficacy of unsolicited and personal job contacts.
Furthermore, we recognize that many entry level positions are
secured by direct contact with employers, and without formal
announcement of job vacancies.
Next, Bagby contends that Clark sought jobs for which he was
not qualified. Clark acknowledged that the physical requirements
for selling auto parts could "get out of hand" and that stocking
merchandise might pose "a great problem" for him in some cases.
However, he testified that he was capable of performing these
tasks.
Finally, Bagby contends that Clark's job search amounted to
a "casual inquiry." Clark admitted that for six months he did
not look seriously for a job. He did not seek, and was not
awarded, compensation for this period. There was no proof that
he registered with the Virginia Employment Commission or read the
classified newspaper advertisements. Yet, the commission found
that he had engaged in a "good faith effort" to find a job.
Clark's prior experience in selling auto parts, working in a
grocery store and operating a cash register led him to pursue
such work, when his injury precluded him from continuing in his
regular trade.
In determining whether a claimant adequately marketed his
capacity to work, we construe the evidence in the light most
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favorable to the party prevailing below. R.G. Moore Bldg. Corp.
v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Where there is no conflict in the evidence, the sufficiency of
the evidence is an issue of law. Brown, 19 Va. App. at 680-81,
454 S.E.2d at 44. The evidence in this case is uncontradicted.
Clark's testimony is not inherently incredible. The record
supports the commission's finding that Clark marketed his
residual work capacity adequately. Accordingly, we affirm the
commission's award.
Affirmed.
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