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Kenny''s Construction Inc. v. Richards12/17/1996
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Kenny's Construction, Inc. and its insurer (hereinafter collectively referred to as "employer") contend that the Workers' Compensation Commission ("commission") erred in (1) refusing to consider employer's labor market survey received by the commission after the record closed; (2) finding that Roger Richards ("claimant") made a good faith effort to market his residual work capacity; and (3) finding that claimant sustained an injury by accident arising out of and in the course of his employment on June 6, 1995. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the commission's decision. Rule 5A:27.
I. Labor Market Survey
The hearing in this case took place on December 13, 1995. At the hearing, the deputy commissioner agreed to hold the record open for thirty days to allow employer to file a labor market survey with the commission. Pursuant to employer's January 10, 1996 request, the commission granted employer an extension until January 26, 1996 within which to submit the labor market survey. The commission received the survey on January 29, 1996, after the record had closed. Consequently, the commission refused to consider the survey as evidence.
The commission afforded employer ample time within which to submit the survey as part of the record. Yet, the commission did not receive the survey until after the record closed. Under these circumstances, we cannot find that the commission abused its discretion by refusing to consider the survey.
II. Marketing
In order to establish entitlement to benefits, a partially disabled employee must prove that he has made a reasonable effort to procure suitable work but has been unable to do so. Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987). "What constitutes a reasonable marketing effort depends upon the facts and circumstances of each case." The Greif Companies v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318 (1993). We have discussed factors which the commission should consider in deciding whether a claimant has made reasonable good faith efforts to market his remaining 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." National Linen Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d 31, 34 (1989) (footnotes omitted).
In reviewing the commission's findings, "we view the evidence in the light most favorable to . . . the party prevailing before the commission." Id. at 270, 380 S.E.2d at 33.
So viewed, the evidence established that the claimant, a thirty-nine-year-old carpenter with a ninth grade education, registered with the Virginia Employment Commission on September 12, 1995 and contacted approximately five employers each week thereafter. Claimant submitted a list of forty-four job contacts. The medical record revealed that although Dr. Mark Prager signed a note on June 17, 1995 releasing claimant to return to work as of June 26, 1995, Dr. Prager also referred claimant to Dr. Frederick Fox at that time. On June 28, 1995, Dr. Fox opined that claimant was disabled from working. On September 11, 1995, Dr. Fox indicated that claimant should be matched with a rehabilitation counselor for consideration of light-duty wor
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