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W.C. HALL GENERAL HAULING TRUCKING, INC. v. BLAINE


W.C. HALL GENERAL
HAULING TRUCKING, INC. v. BLAINE

(unpublished)


JULY 8, 1997
Record No. 0513-97-4

W.C. HALL GENERAL HAULING
TRUCKING, INC. AND LEGION
INSURANCE COMPANY

v.

EDWARD BUTLER BLAINE

MEMORANDUM OPINION[1]
PER CURIAM
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Present: Judges Bray, Annunziata and Overton

(M. Lynn McHale; Siciliano, Ellis, Dyer & Boccarosse, on
brief), for appellants.

(Lawrence J. Pascal; Ashcraft & Gerel, on brief), for
appellee.


W.C. Hall General Hauling Trucking and its insurer
(hereinafter collectively referred to as "employer")
contend that the Workers’ Compensation Commission (commission)
erred in finding that Edward Butler Blaine (claimant) proved that
he made a good faith effort to market his residual work capacity
between December 12, 1995 and April 4, 1996. 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.

The standard of review applicable to this case is as follows:

This appeal does not present a case of conflicting
evidence or a dispute concerning the commission’s findings of
fact. When the issue is the sufficiency of the evidence and
there is no conflict in the evidence, the issue is purely a
question of law. This Court is not bound by the legal
determinations made by the commission. "[W]e must
inquire to determine if the correct legal conclusion has been
reached."

Cibula v. Allied Fibers & Plastics, 14 Va. App.
319, 324, 416 S.E.2d 708, 711 (1992) (quoting City of Norfolk
v. Bennett
, 205 Va. 877, 880, 140 S.E.2d 655, 657 (1965)
(citations omitted)), aff’d, 245 Va. 337, 428 S.E.2d 905
(1993).

In ruling that claimant proved he made a good faith effort to
market his residual capacity between December 12, 1995 and April
4, 1996, the commission recited the following facts:

The claimant has worked as a truck driver for over thirty
years. He has an eighth grade education. He served in the
army and was honorably discharged in 1962. After he was
injured, he returned to work for his pre-injury employer.
When that company dissolved he found two other jobs on his
own initiative. His medical restrictions include no lifting
over thirty-five pounds and no repetitive bending.

After he was laid off from Mid-Atlantic in December, 1995, he
began looking for work. He registered with the Virginia
Employment Commission. He contacted the Department of
Rehabilitation seeking vocational retraining assistance. He
submitted a list of nineteen companies at which he applied for
work and stated that he contacted seven to nine employers
additionally. He also called companies listed in a book of
trucking companies, using an 800 number. He looked in newspaper
ads and spoke with friends. He received initial interest from
Alliance, a tractor-trailer training school, but was rejected
because of insufficient education after four visits to them. At
Rappahannock Auto, business was too slow to hire him. Some
companies request a 100% medical release before he could be
hired.

The claimant was successful in finding employment on April 4,
1996, and he is currently employed as a driver for an automobile
repossessor. Even after he obtained work, he continued to look
for a better job.

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). 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).

The commission’s factual findings are supported by the record.
Based upon these findings, which take into account the factors
set forth in National Linen, we cannot find as a matter of
law that the commission erred in concluding that claimant proved
he made good faith reasonable efforts to market his residual
capacity.

For these reasons, we affirm the commission’s decision.

Affirmed.

 

FOOTNOTES:

[1] Pursuant to Code ? 17-116.010 this opinion is
not designated for publication.

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