Kmart Management Corporation v. Zelones, Record No. 1482-09-4 (Va. App. 3/30/2010)
| Decision Date | 30 March 2010 |
| Docket Number | Record No. 1482-09-4.,Record No. 1580-09-4. |
| Court | Virginia Court of Appeals |
| Parties | KMART MANAGEMENT CORPORATION/SEARS HOLDINGS MANAGEMENT CORPORATION AND INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, v. THOMAS JOHN ZELONES.<SMALL><SUP>**</SUP></SMALL> THOMAS JOHN ZELONES, v. KMART MANAGEMENT CORPORATION/SEARS HOLDINGS MANAGEMENT CORPORATION AND INDEMNITY INSURANCE COMPANY OF NORTH AMERICA. |
Diane C.H. McNamara for Thomas John Zelones.
Present: Judges Humphreys, Kelsey and Petty.
The Workers' Compensation Commission ("the commission") found that Thomas Zelones ("Zelones") sustained a right foot injury due to the accident on July 30, 2007 ("the accident"), which also aggravated a pre-existing right foot condition that resulted in tarsal tunnel syndrome to the right foot. The commission further found that Zelones did not experience a left foot injury due to the accident and that the left foot tarsal tunnel syndrome was not causally related to the July 30, 2007 right foot injury. In addition, the commission found that the deputy commissioner did not err in admitting Zelones's log of job leads ("the log") into evidence. Lastly, it found that Zelones failed to reasonably market his residual capacity from June 18, 2008, through September 7, 2008, but that he had reasonably marketed it from September 8, 2008 forward. Therefore, the commission awarded Zelones continuing temporary total disability compensation beginning September 8, 2008.
Kmart Management Corporation/Sears Management Corporation and Indemnity Insurance Company of North America (hereinafter "employer") contend that the commission erred in finding that (1) the log was admissible; (2) Zelones reasonably marketed his residual work capacity from September 8, 2008 forward; and (3) Zelones was entitled to temporary total disability benefits from September 8, 2008, through the present and continuing. Zelones contends that (1) the commission erred in finding he did not adequately market his residual capacity from June 18, 2008, through September 7, 2008; and (2) that his left foot condition was not a compensable consequence of the July 30, 2007 injury. For the following reasons, we affirm the commission.
Employer argues that the commission erred in finding the log admissible. Specifically, employer contends that the log was not contemporaneous and therefore did not meet the requirements of the best evidence rule. Employer further contends that, due to the many discrepancies between the log and Zelones's deposition, the log lacked the requisite reliability required for its admission into evidence. We disagree.
The best evidence rule is inapplicable to the log because the contents of the log are collateral to the issue of whether Zelones adequately marketed his residual work capacity. According to Friend, the best evidence rule
does not apply even to writings when the contents of the writing are not in issue. It should also be noted that it is sometimes said that even though the proponent of the writing is seeking to prove the contents of the writing, the best evidence rule may still be inapplicable if the contents are only "collateral" to the issues in the case.
Charles E. Friend, The Law of Evidence in Virginia § 16-1(a)(2), at 620 (6th ed. 2003). With regard to "collateral" issues, Friend notes "when the fact in issue is one to which witnesses can testify orally from personal observation, any documents which recite the same facts, though they may be admissible, are only `collateral' to the actual fact, and do not have to be produced, the oral testimony being acceptable." Id. at 623 (emphasis in original).
Even though the best evidence rule does not apply to the log, the commission, in any event, is not bound by the rules of evidence or the technical rules of practice. Specifically, Rule 2.2 of the Rules of the Commission provides:
An evidentiary hearing by the Commission shall be conducted as a judicial proceeding. All witnesses shall testify under oath and a record of the proceeding shall be made. Except for rules which the Commission promulgates, it is not bound by statutory or common law rules of pleading or evidence nor by technical rules of practice.
(Emphasis added). "`[R]igid or technical rules of . . . evidence . . . in the conduct of hearings shall not apply so long as the procedures adopted protect the substantial rights of the parties.'" Rios v. Ryan Inc. Central, 35 Va. App. 40, 44-45, 542 S.E.2d 790, 792 (2001) (quoting Sergio's Pizza v. Soncini, 1 Va. App. 370, 376, 339 S.E.2d 204, 207 (1986)).
Because the best evidence rule is inapplicable to the log and because the commission is not bound by the rules of evidence, the commission did not err in admitting the log.
According to well established principles,
[W]e consider the evidence in the light most favorable to the party prevailing below. States Roofing Corp. v. Bush Constr. Corp., 15 Va. App. 613, 616, 426 S.E.2d 124, 126 (1993). "Factual findings by the commission that are supported by credible evidence are conclusive and binding upon this Court on appeal." So. Iron Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34 (1993). The commission's findings, if supported by credible evidence or reasonable inferences drawn from the evidence, will not be disturbed upon review, even though the record may contain evidence 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).
Estate of Kiser v. Pulaski Furniture Co., 41 Va. App. 293, 297-98, 584 S.E.2d 464, 467 (2003).
In order to establish entitlement to temporary total disability benefits, a partially disabled claimant must prove that he made a reasonable effort to procure suitable work, but was unable to market his residual work capacity. 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." (citing Washington Metro. Area Transit Auth. v. Harrison, 228 Va. 598, 600-01, 324 S.E.2d 654, 655-56 (1985)). "The determination of whether a partially disabled employee has adequately marketed his residual work capacity lies within the fact finding judgment of the commission, and its decision on that question, if supported by credible evidence, 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 employee must obviously exercise reasonable diligence in seeking employment, and what is reasonable in a given case will depend upon all of the facts and surrounding circumstances." Great Atlantic & Pacific Tea Co. v. Bateman, 4 Va. App. 459, 467, 359 S.E.2d 98, 102 (1987). "There are no fixed guidelines for determining what constitutes a `reasonable effort' by an employee to market residual work capacity." Ford Motor Co. v. Favinger, 275 Va. 83, 89, 654 S.E.2d 575, 579 (2008) (citing Bateman, 4 Va. App. at 467, 359 S.E.2d at 102). However, the commission considers the following factors in determining whether an employee adequately marketed his residual work 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.
Nat'l Linen Servs. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d 31, 34 (1989). "`[T]he effort to seek employment will not be deemed reasonable if the claimant places undue limitations on the kind of work he will accept, including limitations not justified by the character of his impairment.'" Bateman, 4 Va. App. at 467, 359 S.E.2d at 102 (quoting 2 A. Larson, Workmen's Compensation Law § 57.61(d) (1987)).
Zelones makes the following three arguments on appeal with respect to the marketing of his residual work capacity: (1) he properly marketed his residual work capacity from June 18, 2008, through September 7, 2008; (2) he had no duty to market in this case; and (3) the employer is estopped from asserting that he failed to adequately market his residual capacity because employer failed to comply with Code § 65.2-7011 which prevented Zelones from seeking a directive from the commission to the employer to provide vocational services under Code § 65.2-603(A)(3).2
Employer also appeals the issue of Zelones's marketing of his residual capacity contending that Zelones did not reasonably market his residual work capacity from September 8, 2008, forward. For the sake of clarity, we will address each party's arguments in turn.
Zelones argues on appeal that he did not have a duty to market his residual work capacity, and in the alternative that employer was estopped from asserting that he failed to adequately market his residual work capacity because it failed to comply with Code § 65.2-701. These arguments are procedurally barred under Rule 5A:18 because they were not raised before the commission and are raised for the first time on appeal. See Rule 5A:18; Dominion Coal Corp. v. Bowman, 53 Va. App. 367, 375 n.6, 672 S.E.2d 122, 125 n.6 (2009). "We have consistently held that issues which were not properly preserved before the commission cannot be raised on appeal." Boys and Girls Club of Va. v. Marshall, 37 Va. App. 83, 85 n.1, 554 S.E.2d...
To continue reading
Request your trial