John Quinn, Inc. v. Barry, Record No. 2229-07-2 (Va. App. 7/15/2008)

• Decision Date: 15 July 2008
• Docket Number: Record No. 2229-07-2.
• Citation: John Quinn, Inc. v. Barry, Record No. 2229-07-2 (Va. App. 7/15/2008), Record No. 2229-07-2. (Va. App. Jul 15, 2008)
• Court: Virginia Court of Appeals
• Parties: JOHN QUINN, INC. AND WCAMC CONTRACTOR'S GROUP SELF-INSURANCE ASSOCIATION v. LAWRENCE E. BARRY.

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Unpublished Opinion

JOHN QUINN, INC. AND WCAMC CONTRACTOR'S GROUP SELF-INSURANCE ASSOCIATION v. LAWRENCE E. BARRY.

Record No. 2229-07-2.

Court of Appeals of Virginia, Richmond.

July 15, 2008.

Appeal from the Virginia Workers' Compensation Commission.

Angela F. Gibbs (Arthur T. Aylward; Midkiff, Muncie & Ross, P.C., on brief), for appellants.

Stephen T. Harper (Kerns, Kastenbaum & Reinhardt, on brief), for appellee.

Present: Judges Frank, McClanahan and Haley.

MEMORANDUM OPINION^*

JUDGE ROBERT P. FRANK.

John Quinn, Inc., and its insurer, WCAMC Contractors Group Self-Insurance Association, (collectively employer), appeal an award of the Virginia Workers' Compensation Commission to claimant, Lawrence E. Barry, for temporary partial disability benefits, contending the commission erred in finding that claimant adequately marketed his residual work capacity. We agree and reverse the decision of the commission.

BACKGROUND

Claimant started working for employer framing residential homes in August 2004.¹ Claimant's work required him to use various types of equipment, including power saws, drills nail guns, and staple guns. Claimant frequently worked at heights eight to nine feet from the ground or floor below. Claimant often had to stand on wood joists or beams that were one and a half to three and a half inches wide, using various tools.

Claimant worked for employer 40 hours per week before the accident. Claimant earned an average weekly wage of $529.38. While working for employer before his injury, claimant also held a part-time position at Home Depot, working 25 to 30 hours per week. Claimant's average weekly wage at this part-time position amounted to $286.68.

Claimant received a compensable injury to his right eye on September 21, 2005 while using a nail gun. Claimant had sustained "a full thickness corneal laceration" that required surgery the day following the accident, and was diagnosed with "traumatic cataract." Claimant's treating physician, Dr. Jason A. Chiappetta, informed claimant that he would eventually require additional surgery to repair the cataract, but that the surgery could not be performed "until the eye is stabilized."² Claimant was released to work full time on October 14, 2005, but his physician noted that his work "may be limited by his impaired vision and depth perception." Dr. Chiappetta stated that claimant could not see any letters on an eye chart with his right eye, but opined that claimant "could rely on the vision from his left eye to perform tasks."

Claimant testified that, after the accident, he was "blind" in his right eye, and could see only light but could not "make out anything." Claimant noted that he could not return to work for employer, as he could not "see lines," had "no depth perception," and could not "tell where my feet are going." Claimant stated that he had difficulty navigating steps and perceiving where others were walking around him. Claimant testified that he felt it would be dangerous for him to continue framing houses.³ On cross-examination, claimant admitted that he drives his car every day, that he does not have any restrictions on his driver's license, and that he is not required to wear any glasses.

After he was released to return to work, claimant increased his hours at Home Depot to 40 hours per week. Claimant indicated that his duties at that position are restricted based on his vision limitations, specifically that he is prohibited from operating any of the heavy equipment or lift equipment. Claimant did not seek any other employment.⁴ Claimant earned a post-injury average weekly wage of $476.16, an increase of $189.48 from what he earned at Home Depot before his injury.

The commission found that "claimant now is unable to perform his pre-injury job with [employer] because he has lost depth perception in the right eye and cannot stand on boards or ladders." The commission held that

[c]ertainly a claimant must fully market and not limit employment, but the wages earned post-accident is but one factor to consider. When we consider other pertinent factors, such as the fact that the claimant's physical limitations preclude many manufacturing and construction jobs, and the fact that he increased his hours at Home Depot from a part-time position to a full-time position, we find that the claimant adequately marketed.

The commission entered an award of temporary partial disability benefits of $226.60, "based on the difference between his pre-injury average weekly wage of $529.38 and the increased post-accident earnings at Home Depot, $189.48."⁵

This appeal follows.

ANALYSIS

Employer, on appeal, contends the evidence was not sufficient to prove claimant had adequately marketed his residual capacity. We agree.⁶

"A partially disabled employee `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 capacity.'" Va. Natural Gas, Inc. v. Clinton Tennessee, 50 Va. App. 270, 282, 649 S.E.2d 206, 212 (2007) (quoting Nat'l Linen Serv. v. McGuinn, 8 Va. App. 267, 270, 380 S.E.2d 31, 33 (1989)). "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 . . . the prevailing party before the commission." Nat'l Linen Serv., 8 Va. App. at 270, 380 S.E.2d at 32.

"Factual findings of the commission that are supported by credible evidence are conclusive and binding upon this Court on appeal." Southern Iron Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34 (1993). "If there is evidence, or reasonable inferences can be drawn from the evidence, to support the [c]ommission's findings, they will not be disturbed on review, even though there is evidence in the record to support a contrary finding." Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986).

Hoy Constr., Inc. v. Flenner, 32 Va. App. 357, 361, 528 S.E.2d 148, 150 (2000). "In determining whether credible evidence exists, the appellate court does not retry the facts, reweigh the preponderance of the evidence, or make its own determination of the credibility of the witnesses." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).

There are no fixed guidelines for determining what constitutes a "reasonable effort" by an employee to market residual work capacity. 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."

Ford Motor Co. v. Favinger, 275 Va. 83, 89-90, 654 S.E.2d 575, 579 (2008) (quoting Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 467, 359 S.E.2d 98, 102 (1987)). However, some of the criteria 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.

Nat'l Linen Serv., 8 Va. App. at 272, 380 S.E.2d at 34 (footnotes omitted). "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.'" Favinger, 275 Va. at 90, 654 S.E.2d at 579 (quoting Nat'l Linen Serv., 8 Va. App. at 271, 380 S.E.2d at 34).

Here, claimant admitted that he made no efforts to conduct a job search outside of increasing his hours at his pre-injury, part-time position. While there was testimony as to claimant's age and some of his work experience, limited to the two jobs he held at the time of his injury, the record contains no evidence as to claimant's education, his training, or any work experience beyond the thirteen months he worked for employer and the six months he worked for Home Depot before his injury. Further, the record does not disclose any evidence as to the "availability of jobs in the area suitable" to claimant's residual capacity. While we agree with the commission's finding that claimant could not return to his pre-injury work with employer, or to any manufacturing or construction position, that finding does not satisfy claimant's burden to prove that the position that he accepted, working full-time with Home Depot, constituted an adequate marketing of his residual capacity.⁷

Both the commission and claimant relied upon this Court's opinion in City of Fairfax v. Massey, 11 Va. App. 680, 401 S.E.2d 439 (1991) (Massey II), for the proposition that claimant adequately marketed his residual capacity. In that case, this Court had before it petitions for rehearing from both the employer and the employee arising from the decision of a panel affirming the commission, City of Fairfax v. Massey, 11 Va. App. 238, 397 S.E.2d 679 (1990) (Massey I). Employer had petitioned this Court for rehearing because it believed this Court had "failed to address" whether employee had adequately marketed his residual capacity by increasing his hours at a position where he had worked part-time before his injury, "`such that the employer is entitled to a credit for all wages earned.'" Massey II, 11 Va. App. at 681, 401 S.E.2d at 440. The Court noted that, when the commission changed the employee's award from one for total incapacity to one for partial incapacity "based on [the employee's] return to dissimilar part-time employment," the commission had "necessarily concluded that the employee had marketed his residual work capacity." Id. The Court stated that Massey I...