Wall Street Deli, Inc. v. O'BRIEN

CourtCourt of Appeals of Virginia
Citation527 S.E.2d 451,32 Va. App. 217
Decision Date18 April 2000
Docket NumberRecord No. 1781-99-4.
PartiesWALL STREET DELI, INC. and Hartford Casualty Insurance Company v. John Kenneth O'BRIEN.

Dawn E. Boyce (Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C., on brief), Fairfax, for appellants.

James F. Green (Ashcraft & Gerel, LLP., on brief), Alexandria, for appellee.


WILLIS, Judge.

On appeal from a decision of the Workers' Compensation Commission awarding disability benefits to John Kenneth O'Brien, Wall Street Deli, Inc., and Hartford Casualty Insurance Company, hereinafter collectively referred to as "Wall Street," contend (1) that the commission abused its discretion in remanding the case for additional evidence, (2) that the evidence failed to prove that O'Brien adequately marketed his residual work capacity, and (3) that the evidence was insufficient to support the award of disability benefits. Because we find that O'Brien failed to market his residual work capacity adequately, we reverse the commission's award and enter final judgment for Wall Street. We do not address the other issues raised on appeal.

On October 15, 1996, O'Brien, a forty-eight-year-old college graduate and supervisor trainee, suffered a compensable injury to his head and neck. In early December 1996, he was released to light-duty employment. He moved to his parents' home in New York, registered with the New York Employment Commission and thereafter obtained a part-time job at Stonybrook Yacht Club, doing general maintenance and cleaning twelve to sixteen hours per week at $8.50 per hour. His pre-injury average weekly wage was $680. He attempted a second part-time job at a grocery store but found the required effort inconsistent with his injuries. He testified that his treating physician had recommended for him a twenty-hour workweek, preferably at four hours per day. After December 23, 1996, O'Brien continued his job at the yacht club, but made no further effort to find additional, other, or more lucrative employment.

Noting O'Brien's part-time employment with Stonybrook Yacht Club and his attempt at the other part-time job, but holding that he had not adequately marketed his residual capacity after December 23, 1996, the deputy commissioner awarded him temporary total disability benefits through December 23, 1996.

Both parties sought review. The full commission found that O'Brien's injury was compensable and that he had adequately marketed his residual work capacity. It remanded the case to the deputy commissioner to receive evidence of O'Brien's earnings from his light-duty employment and to determine his partial disability benefits beginning December 23, 1996. The deputy commissioner did so and entered an award. Wall Street again sought review on the issues of marketing residual work capacity and sufficiency of the evidence to support an award after December 23, 1996. The full commission affirmed the deputy commissioner's award on both issues.

Where an employee's disability is partial, to establish his entitlement to benefits, he must prove...

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24 cases
    • United States
    • Court of Appeals of Virginia
    • 12 April 2011
    ...Accord Metro. Washington Airports Auth. v. Lusby, 41 Va. App. 300, 317, 585 S.E.2d 318, 326 (2003); Wall St. Deli, Inc. v. O'Brien, 32 Va. App. 217, 220, 527 S.E.2d 451, 453 (2000). Essentially, a claimant "'must present some evidence that he [has] engaged in a good faith effort to obtain w......
  • G.C. Constr., L.L.C. v. Cruz, Record No. 1245-11-4
    • United States
    • Court of Appeals of Virginia
    • 6 March 2012
    ...Virginia Natural Gas, Inc. v. Tennessee, 50 Va. App. 270, 283, 649 S.E.2d 206, 213 (2007) (quoting Wall Street Deli, Inc. v. O'Brien, 32 Va. App. 217, 220-21, 527 S.E.2d 451, 453 (2000)). Unless we can say as a matter of law that claimant's evidence sustained his burden of proof, the commis......
  • Norfolk Admirals and Federal Insurance Company v. Jones, Record No. 0050-05-4 (VA 11/1/2005), Record No. 0050-05-4.
    • United States
    • Supreme Court of Virginia
    • 1 November 2005
    ...commission's factual determinations as binding if supported by credible evidence. Code § 65.2-706(A); Wall Street Deli v. O'Brien, 32 Va. App. 217, 220-21, 527 S.E.2d 451, 453 (2000). In this case, the commission concluded that claimant was not required to market his residual physical capac......
  • Ford Motor Co. v. Favinger, Record No. 062620.
    • United States
    • Supreme Court of Virginia
    • 11 January 2008
    ...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 ar......
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