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DEPARTMENT OF TRANSPORTATION v. SAVEDGE, JR.


NOTICE: The opinions posted here are
subject to formal revision. If you find a typographical error or
other formal error, please notify the Virginia Court of Appeals.


DEPARTMENT OF
TRANSPORTATION

v.

SAVEDGE, JR.


AUGUST 21, 2001

Record No. 0791-01-1

Present: Chief Judge Fitzpatrick, Judge
Bumgardner and

Senior Judge Hodges

COMMONWEALTH OF VIRGINIA/

DEPARTMENT OF TRANSPORTATION

v.

RUFFIN HENRY SAVEDGE, JR.

FROM THE VIRGINIA WORKERS’ COMPENSATION
COMMISSION

(Mark L. Earley, Attorney General; Judith
Williams

Jagdmann, Deputy Attorney General; Gregory E.
Lucyk,

Senior Assistant Attorney General; Scott John

Fitzgerald, Assistant Attorney General, on
brief), for

appellant.

(Robert E. Walsh; Rutter, Walsh, Mills &
Rutter, L.L.P.,

on brief), for appellee.


MEMORANDUM OPINION[1] PER
CURIAM

Commonwealth of Virginia/Department of
Transportation (employer) contends that the Workers’ Compensation
Commission erred in finding that Ruffin Henry Savedge, Jr.
(claimant) proved that he made a good faith effort to market his
residual work capacity between July 21, 1999 and June 26, 2000.
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. See 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 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 Grief 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.

So viewed, the evidence proved that claimant
sustained a compensable injury to his neck and shoulder while
working for employer on March 13, 1991. Employer accepted the
claim as compensable and paid benefits to claimant for various
periods of disability.

Claimant, a fifty-eight-year-old high school
graduate, worked as a deck hand for employer for thirteen months
before his injury. Before that, he worked as a welder for fifteen
years. Since claimant’s 1991 injury, employer has not offered him
any vocational rehabilitation services. Claimant has permanent
restrictions, established by the medical evidence, of sedentary
work, with no lifting over ten pounds. He sustained a
fifty-percent loss of use of his right arm.

In May 1999, claimant registered with the
Virginia Employment Commission. Claimant sought employment leads
through the newspaper, friends, and neighbors. Claimant provided
a job contact list for the relevant time period, indicating that
he made three job contacts per week. All of the jobs exceeded
claimant’s restrictions, but he testified that he did not know
this fact until he made the contacts and talked with the people
about the jobs. Claimant testified that he was advised to make
three job contacts per week and, therefore, he limited his
contacts to that number. He returned to some employers on more
than one occasion to see if they might have an opening within his
restrictions. The types of jobs claimant sought included farm
worker, construction laborer, grounds man, stocker, cleaner, gas
station attendant, lawn care, cook and maintenance worker. He
applied to hotels, grocery stores, retail stores, retirement
communities, service stations, fast food restaurants,
construction companies, and gas stations. He looked for jobs in
the Surry, Williamsburg, and Jamestown areas. Claimant estimated
that he contacted seventy-five percent of the prospective
employers in-person and twenty-five percent by telephone.
Claimant has not had a driver’s license since 1993. Claimant
believed that he would have to pay a fine to reinstate his
license.

Based upon this record, the commission found as
follows:

[T]he evidence establishes that
the claimant marketed his residual capacity from
July 21, 1999, through June 26, 2000. In doing
so, we note that the claimant has, with one
exception, made three job contacts per week. This
has resulted in no offers of employment. The
employer has offered no assistance in the
claimant’s job search. While we are troubled that
the claimant limited his attempts at employment
contacts to three per week, it is apparent that
he did so based on being advised that this was
sufficient. In view of his background, severe
disability, and the fact that there have been no
job offers, we do not find this fatal to the
claimant’s case. The claimant looked for
employment in Surry, Williamsburg, and Jamestown,
the areas he apparently has the most familiarity
because they are in close proximity to his home
and pre-injury work. In the absence of any
evidence that the claimant worked or had any
connection with the Hopewell or Petersburg areas,
plus the lack of any evidence concerning the
proximity of his home to these cities, we do not
find his failure to seek employment there fatal
to his case. Likewise, it is not unreasonable
that the claimant returned to employers during a
one-year period to determine if they may have a
job available within his restrictions.

The commission’s findings are supported by
credible evidence, including the medical records, claimant’s
testimony, and his list of job contacts. As fact finder, the
commission could conclude that claimant’s contact with three
employers per week, over an approximately one-year period, was
reasonable in light of claimant’s age, level of education, prior
work history of manual labor jobs, and his severe physical
limitations.

As fact finder, the commission was entitled to
conclude that claimant’s limit on the number of job contacts per
week and the particular geographical area of his search was not
fatal to his case. Claimant testified that he was
"advised" that he should make three job contacts per
week. In addition, although employer asserts that claimant should
have looked for work in the Hopewell and Petersburg areas, no
evidence showed how close these areas were to his home or whether
he had any prior connection to these areas. The law requires only
a reasonable marketing effort, not the most efficient or best
effort. Moreover, no evidence showed that appellant’s failure to
attempt to reinstate his driver’s license indicated a lack of
good faith in his efforts to market his residual work capacity.

Because the commission’s findings are supported
by credible evidence, we will not disturb them on appeal.
Accordingly, we affirm the commission’s decision.

Affirmed.

 

FOOTNOTES:

[1] Pursuant to Code
Sect. 17.1-413, this opinion is not designated for
publication.

 

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