Dannie Wilson v. Perdue Farms, Inc.

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Kelsey and Senior Judge Hodges
DANNIE WILSON
MEMORANDUM OPINION*
v. Record No. 1937-03-1 PER CURIAM
FEBRUARY 17, 2004
PERDUE FARMS, INC.
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Dannie Wilson, pro se, on brief).
(Jennifer G. Tatum; Clarke, Dolph, Rapaport, Hardy & Hull, P.L.C.,
on brief), for appellee.
Dannie Wilson (claimant) contends the Workers’ Compensation Commission erred in
finding that he failed to prove he adequately marketed his residual work capacity after being
placed on a leave of absence on October 1, 2001. Upon reviewing the record and the parties’
briefs, we conclude that this appeal is without merit. Accordingly, we summarily affirm the
commission’s decision. Rule 5A:27.1
A partially disabled employee is required to make reasonable efforts to market his
residual earning capacity to be entitled to receive continued benefits. See National Linen Serv.
v. McGuinn, 8 Va. App. 267, 269, 380 S.E.2d 31, 33 (1989). “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
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
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Perdue Farms, Inc. (employer) contends that claimant’s appeal should be dismissed
because his pro se brief did not include a Statement of Questions Presented as required by Rule
5A:20. Because we summarily affirm the commission’s decision, we decline to address
employer’s argument.
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., 8 Va. App. at 272, 380 S.E.2d at 34 (footnotes omitted). In reviewing the
commission’s findings, “we review the evidence in the light most favorable to . . . the party
prevailing before the commission.” Id. at 270, 380 S.E.2d at 33. Unless we can say as a matter
of law that claimant’s evidence sustained his burden of proof, the commission’s findings are
binding and conclusive upon us. See Tomko v. Michael’s Plastering Co., 210 Va. 697, 699, 173
S.E.2d 833, 835 (1970).
In ruling that claimant failed to prove he made adequate efforts to market his residual
work capacity after October 1, 2001, the commission found as follows:
During the 28-week period between October 1, 2001, and
the hearing on April 17, 2002, the claimant made a total of 33 job
contacts including the three times he reported to work at Perdue.
This is an average of 1.07 job contacts per week. With the
exception of the contacts with Perdue, the claimant was unable to
identify the date of the contact, the person with whom he spoke,
the nature of the position available, or even if a position was
available. Although the claimant looked in the newspaper, he did
not even apply for any of the positions advertised.
The record amply supports the commission’s findings with respect to claimant’s
marketing efforts. Based upon this record and applying the guidelines enumerated in McGuinn,
we cannot find as a matter of law that claimant’s evidence proved he adequately marketed his
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residual work capacity after October 1, 2001. Accordingly, we affirm the commission’s
decision.
Affirmed.
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