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Ward v. Tidewater Sand Co.11/26/1996
cal evidence shows that [Ward's] occupational back injury was aggravated by continuing work with the City of Chesapeake, which demonstrates that such work was unsuitable. However, the medical evidence also establishes that the claimant's symptoms improved with medication and avoidance of such work."
The commission's findings are supported by the medical evidence, which "is not necessarily conclusive, but is subject to the commission's consideration and weighing." Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991).
Based upon the commission's credibility determination and the lack of medical evidence establishing that Ward's March 1989 compensable back injury prevented him from performing all types of gainful employment, we cannot say as a matter of law that Ward's evidence sustained his burden of proving total disability. At best, Ward's evidence proved partial disability.
II.
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). Because Ward stipulated before the commission that he engaged in no marketing efforts after leaving his job with the City of Chesapeake, we cannot find that the commission erred in denying his claim for compensation benefits.
For these reasons, we affirm the commission's decision.
Affirmed.
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