County of James City Fire Dept. v. Smith

• Decision Date: 04 August 2009
• Docket Number: Record No. 0225-09-1.
• Citation: 680 S.E.2d 307,54 Va. App. 448
• Court: Virginia Court of Appeals
• Parties: COUNTY OF JAMES CITY FIRE DEPARTMENT and Virginia Municipal Group Self-Insurance Association v. Warren Edward SMITH.

680 S.E.2d 307

54 Va. App. 448

COUNTY OF JAMES CITY FIRE DEPARTMENT and Virginia Municipal Group Self-Insurance Association v. Warren Edward SMITH.

Record No. 0225-09-1.

Court of Appeals of Virginia, Chesapeake.

August 4, 2009.

Ralph L. Whitt, Jr. (Brandon R. Jordan; Whitt & Del Bueno, P.C., on briefs), Glen Allen, for appellants.

Joseph F. Verser (Richard B. Donaldson, Jr.; Jones, Blechman, Woltz & Kelly, P.C., on brief), Newport News, for appellee.

Present: FELTON, C.J., FRANK, J., and BUMGARDNER, S.J.

FRANK, Judge.

County of James City Fire Department and Virginia Municipal Group Self-Insurance Association, (collectively appellant), appeal the decision of the Workers' Compensation Commission (commission) which awarded temporary partial benefits to Warren Edward Smith (claimant). Appellant contends the commission erred in finding claimant adequately marketed his residual work capacity.¹ For the reasons stated, we reverse the commission's decision.

BACKGROUND

Claimant, age sixty-one at the time of the hearing before the deputy commissioner, had been employed by appellant as a firefighter/emergency medical technician captain. His employment spanned thirty-eight years. As captain, he supervised four or five firefighters and paramedics. He also fought fires, pulling heavy hose lines and ladders. Claimant characterized his job as "management and mid management." His responsibilities included office work, evaluations, and recording "leave time," and he averaged six to seven emergency calls a day. Pre-injury, claimant averaged a weekly wage of $1,339.65. Claimant characterized his work as stressful.² Claimant has been under continual care with Dr. Keith E. Hanger, a cardiologist. He discussed potential job opportunities with Dr. Hanger and was advised he should avoid stressful employment.

Claimant testified that within several weeks of the November 14, 2007 deputy commissioner's hearing, he had sought employment with the County as a park attendant and was waiting to hear from the County. That job would pay between $11 and $13 per hour. Within the same time period, he sought employment with a construction company, involving "light construction," paying $8 to $9 per hour. He also applied for employment at the Virginia Employment Commission (VEC) within the same time frame, but the computers were "down" and he was unable to complete the application process. However, VEC personnel instructed claimant on the use of the computer to search for jobs. Claimant testified that since the beginning of 2007, he spoke with a "few here and there just putting feelers out just trying to find—and going through newspapers looking at ads...." There was no testimony as to any specific job inquiries. As early as November 2006, claimant knew that he could perform some type of work, but he did not know the type of work he could accept.

Claimant did secure employment on November 7, 2007 with Wright Signs, as a sign assembler. At oral argument, claimant admitted this was a part-time job. Pay stubs indicate claimant worked substantially less than forty hours each of his first two weeks of employment.³ Wright Signs indicated to claimant that at a thirty-day and ninety-day review, the company would consider a "several dollars per hour" increase. Claimant testified he would leave the job at Wright if a higher paying job arose.

On cross-examination, claimant admitted in the week since he accepted the Wright job, he had not sought other employment. However, claimant testified he would continue to seek employment through VEC as soon as its website was operational.

Claimant initially filed his claim on October 6, 2006 and an amended claim April 20, 2007. The commission sent a notice to claimant on April 19, 2007 for a July 2, 2007 hearing. Another notice was sent May 9, 2007 for a September 18, 2007 hearing. That hearing was continued. Finally, the commission sent a notice on July 11, 2007 for the November 14, 2007 hearing.

The deputy commissioner found claimant "reasonably marketed his remaining work capacity commencing November 7, 2007," and awarded claimant temporary partial disability benefits from November 7, 2007, and continuing.

The full commission affirmed the deputy's finding:

We find that the claimant had adequately marketed his residual work capacity as of the date of the hearing. Although the job that he found paid considerably less than his pre-injury average weekly wage, he had not stopped looking for work. The claimant had submitted at least two applications the week before obtaining the job with Wright, and was waiting to hear from those two employers. Furthermore, he testified that he went to the VEC to register, but their computers were down. The claimant stated that he intended to register and to look for jobs through their website. He also said that he was willing to take a higher paying position if offered. Based on this evidence, under the circumstances of this

case, we find that at the time of the hearing, the claimant had adequately marked his residual work capacity.

This appeal follows.

ANALYSIS

Appellant contends claimant failed to find suitable work, thus not earning what he is "able to earn" when he accepted the job at Wright Signs. Further, appellant maintains claimant did not reasonably market his residual work capacity. Appellant also challenges the commission's finding that claimant had not stopped seeking employment.⁴

The Supreme Court of Virginia, in Ford Motor Company v. Favinger, 275 Va. 83, 654 S.E.2d 575 (2008), expounded the standard of review and burden of proof in such cases.

An award by the Commission is conclusive and binding as to all questions of fact. Code § 65.2-706(A). 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. 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)).

Favinger, 275 Va. at 88, 654 S.E.2d at 578 (other citations omitted).

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." Wash. Metro. Area Trans. Auth. v. Harrison, 228 Va. 598, 601, 324 S.E.2d 654, 656 (1985); 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.").

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 considered include:

(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 v. McGuinn, 8 Va. App. 267, 272-73, 380 S.E.2d 31, 34 (1989) (footnotes omitted). Thus, 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." Id. at 271, 380 S.E.2d at 34 (quoting Dunkin Donuts of America, Inc. v. Watson, 366 A.2d 1121, 1126 (Me.1976)).

"In determining whether a claimant has made a reasonable effort to market his remaining work capacity, we view the evidence in the light most favorable to [claimant], as he was the prevailing party before the commission." Id. at 270, 380 S.E.2d at 33.

Since whether claimant made reasonable efforts to market his residual work capacity is a factual determination, we must determine whether the commission's finding is supported by credible evidence. We find as a matter of law that it is not. Favinger, 275 Va. at 88, 654 S.E.2d at 578.

The record reveals that claimant had years of experience as an emergency medical technician/firefighter. This employment involved management and personnel responsibilities. The last day that claimant worked as a captain for employer was July 3, 2006, but he retired under disability on December 31, 2006.

Claimant initially filed his claim with the commission on October 6, 2006 as amended on April 20, 2007. The commission notified claimant on April 19, 2007 and May 9, 2007 for hearings that were continued. On July 17, 2007, claimant was notified of the November 14, 2007 hearing.

Within two weeks of the deputy commissioner's hearing, claimant sought a job with the County, with a...