Present: All the Justices
FORD MOTOR COMPANY
v. Record No. 062620 OPINION BY JUSTICE CYNTHIA D. KINSER
January 11, 2008
WILLIAM K. FAVINGER
FROM THE COURT OF APPEALS OF VIRGINIA
In this workers? compensation claim for temporary
partial disability benefits, the dispositive issue is
whether an employee made a reasonable effort to market his
residual work capacity. Because the record contains no
evidence that the employee did so, we will reverse the
judgment of the Court of Appeals of Virginia that affirmed
an award of benefits.
On September 11, 2002, while working for Ford Motor
Company, William K. Favinger suffered an injury compensable
under the Virginia Workers? Compensation Act (the Act),
Code ?? 65.2-100 through 65.2-1310. Favinger received
compensation benefits for various periods and was
eventually released to return to light duty work on May 12,
2003. Prior to his injury, Favinger performed work in a
body shop that required lifting up to 25 pounds, but the
light duty work involved less physical exertion and
consisted of work in an office setting and some
?containment work? in the body shop. Since his return to
light duty work, Favinger has received his pre-injury
On July 31, 2003, Favinger filed a change of condition
application alleging entitlement to temporary partial
disability benefits for the periods of May 12, 2003 through
June 1, 2003 and June 10, 2003 through September 21, 2003.1
Favinger claimed that he earned less performing light duty
work than he had earned in his pre-injury job because of
the loss of overtime work offered by Ford.
A deputy commissioner denied Favinger?s claim for
temporary partial disability benefits. With respect to the
issues before us, the deputy commissioner concluded
Favinger did not show ?that comparable workers in the body
shop earned more overtime after May 12, 2003, than he was
able to earn.? The deputy commissioner also found that
Favinger failed to carry his burden to ?prove that he
marketed his residual capacity and was unable, despite
those efforts, to eliminate or mitigate his wage loss.?
1 Favinger included in his claim the period from May
16, 2003 through May 25, 2003 when Ford experienced a
temporary shut down and the period from June 30, 2003 to
July 14, 2003 when Ford had its annual shut down.
Favinger also sought temporary total disability
benefits from June 2 through June 9, 2003. Ford agreed
that Favinger was entitled to the claimed compensation for
that one time period.
Favinger sought review of the deputy commissioner?s
decision by the Workers? Compensation Commission
(Commission). The Commission awarded Favinger temporary
partial disability benefits for various post-injury weeks
in which his weekly wages were less than his pre-injury
average weekly wages. The Commission concluded that
Favinger did not have ?to prove that comparable employees
continued to receive overtime opportunities . . . [because] they were free to pursue other employment opportunities if
they became dissatisfied with less frequent overtime[;
whereas, Favinger] was partially disabled as a result of a
compensable work injury, and thus precluded from seeking
employment comparable to his pre-injury position with other
Ford appealed the Commission?s decision to the Court
of Appeals of Virginia. In an unpublished opinion, the
Court of Appeals held that the Commission erred by failing
to address whether Favinger had ?adequately marketed his
residual work capacity in order to recoup his lost
overtime.? Ford Motor Co. v. Favinger, Record No. 0112-05-
1, slip op. at 2 (October 11, 2005). The Court of Appeals
thus reversed the award of benefits and remanded the case
to the Commission for determination of that question. Id.
On remand, the Commission noted that Favinger
testified during the hearing before the deputy commissioner
that he did not seek other employment during the periods
when Ford did not offer him overtime. The Commission,
however, found that it was ?unreasonable to expect
[Favinger] to try to find additional employment over and
above the  hours he was already working for the
employer. Such work would likely interfere with any
overtime which might become available.? Thus, the
Commission concluded ?that under the circumstances of this
case, [Favinger] did not have a duty to market his residual
capacity during times when the employer did not offer
overtime to any of its employees.? The Court of Appeals
subsequently held that Ford?s appeal of the Commission?s
decision was without merit. Ford Motor Co. v. Favinger,
Record No. 1254-06-1 (September 19, 2006).
On appeal to this Court, Ford presents three
assignments of error: (1) the Court of Appeals erred by
sustaining the Commission?s finding that Favinger
established a causal link between his alleged wage loss and
his work-related injury; (2) the Court of Appeals erred in
upholding the Commission?s award of benefits because
Favinger failed to market his residual work capacity; and
(3) the Court of Appeals erred by affirming the
Commission?s award of benefits that was based on Favinger?s
post-injury actual weekly wages instead of his post-injury
average weekly wages. The second issue is dispositive of
With regard to Favinger?s marketing of his residual
work capacity, Ford argues that, since Favinger?s wage loss
claim is based on the reduced amount of overtime that he
worked after his injury, he must show that he sought work
in addition to his normal 40-hour work week and could not
find such employment because of his work-related injury.
Ford challenges the Commission?s conclusion that it was
unreasonable to require Favinger to find work in excess of
40 hours and contends that there is no evidence to support
the Commission?s finding that part-time work might conflict
with Favinger?s duties at Ford. Ford acknowledges that, if
Favinger had demonstrated that he tried to find additional
work and that such work conflicted with his job at Ford, he
would have satisfied his burden to market his residual work
In response, Favinger argues that his acceptance of a
light duty job procured by Ford and his willingness to work
overtime when offered by Ford demonstrates that he marketed
his residual capacity to work more than 40 hours per week.
He also contends that it would be unreasonable to expect
him to work part-time for another employer because the
hourly rate of pay would be significantly lower than the
rate he earned working overtime at Ford. And, if he
accepted such a position, he would not be available to work
overtime when Ford offered it to him. In short, Favinger
contends that he ?marketed himself by simply being
available, upon a moment?s notice, to work overtime? at
An award by the Commission is conclusive and binding
as to all questions of fact. Code ? 65.2-706(A); Bass v.
City of Richmond Police Dep?t, 258 Va. 103, 114, 515 S.E.2d
557, 563 (1999); Stenrich Group v. Jemmott, 251 Va. 186,
192, 467 S.E.2d 795, 798 (1996). The determination as to
whether an employee seeking temporary partial disability
benefits has made a reasonable effort to market his
residual work capacity falls within the Commission?s fact-
finding, and if the Commission?s factual conclusion on that
question is supported by credible evidence, it will not be
disturbed on appeal. Wall Street Deli, Inc. v. O?Brien, 32
Va. App. 217, 220-21, 527 S.E.2d 451, 453 (2000). The
Commission?s factual findings, however, are ??conclusive
and binding? only to the extent that they are ?predicated
upon evidence introduced or appearing in the proceedings.??
Uninsured Employer?s Fund v. Gabriel, 272 Va. 659, 664, 636
S.E.2d 408, 411 (2006) (quoting Vanzant v. Southern Bending
Co., 143 Va. 244, 246, 129 S.E. 268, 268 (1925)). If the
Commission?s findings of fact are not based on credible
evidence, ?its findings are not binding and the question
presented becomes one of law.? Great Atlantic & Pacific
Tea Co. v. Robertson, 218 Va. 1051, 1053, 243 S.E.2d 234,
235 (1978) (citing Conner v. Bragg, 203 Va. 204, 207, 123
S.E.2d 393, 395 (1962)); accord Gabriel, 272 Va. at 664,
636 S.E.2d at 411; American Motorists Ins. Co. v. Summers,
183 Va. 428, 431, 32 S.E.2d 673, 674 (1945).
Pursuant to Code ? 65.2-502(A), an employer is
required to pay to an employee with partial incapacity for
work resulting from an injury ?a weekly compensation equal
to 66 2/3 percent of the difference between his average
weekly wages before the injury and the average weekly wages
which he is able to earn thereafter.? A partially disabled
employee who refuses ?employment procured for him suitable
to his capacity? loses entitlement to certain benefits
?during the continuance of such refusal, unless in the
opinion of the Commission such refusal was justified.?2
2 We have stated that the legislative intent behind
former Code ? 65.1-63 (now Code ? 65.2-510) is ?to
encourage injured employees to seek selective employment
rather than to remain unemployed unless the employer finds
such employment for them.? Big D Quality Homebuilders v.
Hamilton, 228 Va. 378, 382, 322 S.E.2d 839, 841 (1984).
Code ? 65.2-510; see Washington Metropolitan Area Transit
Authority v. Harrison, 228 Va. 598, 601, 324 S.E.2d 654,
In a claim for temporary partial disability, the
employee ?[has] the burden of proving that he [has] made a
reasonable effort to procure suitable work but [is] unable
to market his remaining work capacity.? Harrison, 228 Va.
at 601, 324 S.E.2d at 656; see also White v. Redman Corp.,
41 Va. App. 287, 292, 584 S.E.2d 462, 464 (2003) (?A
partially incapacitated employee . . . is not entitled to
temporary total disability benefits unless he has made a
reasonable effort to market his remaining capacity for
work.?); Holly Farms Foods, Inc. v. Carter, 15 Va. App. 29,
42, 422 S.E.2d 165, 171 (1992) (?A claimant still has the
burden of proving his entitlement to benefits, and to do
that ?he [has] the burden of proving that he [has] made a
reasonable effort to procure suitable work but was unable
to market his remaining work capacity.? ?) (alterations in
original) (citation omitted); Manis Constr. Co. v.
Arellano, 13 Va. App. 292, 294, 411 S.E.2d 233, 234 (1991)
(?As a condition to benefits under the Virginia Workers?
Compensation Act . . . , a partially disabled employee must
make a reasonable effort to market his remaining work
capacity.?); National Linen Serv. v. McGuinn, 8 Va. App.
267, 270, 380 S.E.2d 31, 33 (1989) (?[A claimant] who seeks
compensation of the wage differential between his new and
his old jobs has the burden of proving that he has made a
reasonable effort to market his full remaining work
There are no fixed guidelines for determining what
constitutes a ?reasonable effort? by an employee to market
residual work capacity. Great Atlantic & Pacific Tea Co.
v. Bateman, 4 Va. App. 459, 467, 359 S.E.2d 98, 102 (1987).
An employee must ?exercise reasonable diligence in seeking
employment? and the reasonableness of an employee?s effort
will be determined on a case by case basis, taking into
account ?all of the facts and surrounding circumstances.?
Id. Some of the criteria, however, that should be
(1) the nature and extent of [the] employee?s
disability; (2) the employee?s training, age,
experience, and education; (3) the nature and
extent of [the] 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 [the] employee?s
capacity to find suitable employment.
National Linen Service, 8 Va. App. at 272, 380 S.E.2d at 34
(footnotes omitted); accord Metropolitan Washington
Airports Auth. v. Lusby, 41 Va. App. 300, 317, 585 S.E.2d
318, 326 (2003); Wall Street Deli, 32 Va. App. at 220, 527
S.E.2d at 453. In sum, an employee ?must present ?some
evidence that he [has] engaged in a good faith effort to
obtain work within the tolerance of his physical condition?
and has failed to find a job, either due to his injury or
because no such work was available in the community.?
National Linen Service, 8 Va. App. at 271, 380 S.E.2d at 34
(quoting Dunkin Donuts of America, Inc. v. Watson, 366 A.2d
1121, 1126 (Me. 1976) (emphasis added)).
Favinger, however, did not make a reasonable effort to
market his residual work capacity; in fact, he made no
effort. When testifying before the deputy commissioner,
Favinger was asked: ?When you were losing that overtime did
you seek any other employment to pick up that overtime??
Favinger responded: ?No, sir.?
Despite this testimony, the Commission concluded that
it was ?unreasonable to expect? Favinger to market his
residual capacity beyond his 40-hour work week at Ford and
that, if he did so, such overtime work ?would likely
interfere with any overtime which might become available?
at Ford.3 The Commission?s conclusion, however, is not
3 The two cases cited by the Commission to support its
conclusion, Carr v. Virginia Electric & Power Co., 25 Va.
App. 306, 487 S.E.2d 878 (1997), and Consolidated Stores
Corp. v. Graham, 25 Va. App. 133, 486 S.E.2d 576 (1997),
did not address the issue of an employee?s responsibility
supported by any evidence that Favinger actually attempted
to market his residual work capacity and that available
jobs within his capacity would have interfered with his
duties at Ford, including his ability to accept overtime
work when offered by Ford.
Before his injury, Favinger routinely worked 50-hour
weeks at Ford, and he now claims a wage loss for the
overtime that he did not receive during certain weeks while
performing his light duty job. The fact that he accepted
the light duty job and was willing to work overtime when
Ford offered it did not negate the requirement that he make
a reasonable effort to market his residual work capacity,
i.e., the additional 10 hours of overtime.4 In the absence
of a reasonable effort to market his residual work
capacity, Favinger is not entitled to temporary partial
disability benefits for his alleged loss of overtime
earnings. See Pocahontas Fuel Co. v. Agee, 201 Va. 678,
681, 112 S.E.2d 835, 838 (1960) (employee was not entitled
to benefits because he ?never applied for work elsewhere
either before or after he learned that he had silicosis,
and there [was] no proof that he could not have marketed
to make a reasonable effort to market residual work
his remaining capacity for work?); Pocahontas Fuel Co. v.
Barbour, 201 Va. 682, 684, 112 S.E.2d 904, 906 (1960)
(reversing Commission?s award of benefits because there was
no proof either that the employee made ?a reasonable effort
to procure work? or that he was unable to market his
residual capacity); see also Island Creek Coal Co. v.
Fletcher, 201 Va. 645, 648, 112 S.E.2d 833, 835 (1960)
(employee was awarded compensation because he demonstrated
that ?he was willing to accept other employment and did
make an effort to work outside the mine but was unable to
perform that work?).
For these reasons, we conclude that the Commission?s
award of temporary partial disability benefits to Favinger
was not ?predicated upon evidence introduced or appearing
in the proceeding.? Vanzant, 143 Va. at 246, 129 S.E. at
268. We will, therefore, reverse the judgment of the Court
of Appeals and enter final judgment here in favor of Ford.
Reversed and final judgment.
4 Favinger?s argument concerning the wage differential
if he accepted overtime work with an employer other than
Ford is not supported by any evidence in the record.