Ocean Cove, etc., et al. v Stevan Lee Troutman

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bray, Annunziata and Overton
OCEAN COVE CONSTRUCTION CO., INC.
AND
NATIONWIDE MUTUAL INSURANCE COMPANY MEMORANDUM OPINION*
v. 	Record No. 2620-95-1 	PER CURIAM
MAY 14, 1996
STEVAN LEE TROUTMAN
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(Fay F. Spence; Spence & Whitlow, on briefs), for
appellants.
(Gregory E. Camden; Rutter & Montagna, on brief), for
appellee.
Ocean Cove Construction Co., Inc. and its insurer contend
that the Workers' Compensation Commission erred in finding that
it did not prove that Stevan L. Troutman ("claimant") failed to
(1) market his residual capacity after his light-duty release;
and (2) cooperate with vocational rehabilitation efforts. 	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. 	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
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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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.
In awarding temporary partial disability benefits to
claimant, the commission found that claimant marketed his
residual work capacity. 	In so ruling, the commission found the
following:The medical record reflects that claimant is
under light-duty restrictions which include
no heavy lifting, climbing, carrying,
squatting, kneeling, or working above ground.
This essentially precludes claimant from
returning to his preinjury job. 	However, he
did obtain employment with his preinjury
employer, of which he is part-owner. 	It

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appears that the salary is commensurate with
the work claimant is performing, and there is
no evidence before us to indicate that there
are any other employees with this company
performing the same duties and receiving a
greater salary. 	Neither does the evidence
establish the availability of work with a
different employer which would pay a greater
wage. 	Having obtained this position with his
preinjury employer, we find, in this case,
that the claimant has no further duty to
market his residual capacity.
These findings are supported by Dr. Morina's records,
claimant's testimony, and the evidence concerning the jobs, which
Janie Vogel, placement specialist, submitted to claimant for his
consideration. 	Accordingly, based upon this record, we cannot
say as a matter of law that the commission erred in ruling that
claimant adequately marketed his residual capacity.
II. 	Vocational Rehabilitation
In ruling the evidence was insufficient to prove that
claimant failed to cooperate with vocational rehabilitation, the
commission found as follows:
[T]he potential jobs identified by the
placement specialist consisted of two jobs
with an indeterminate hourly wage; one job
with an hourly wage of $4.50, while his
current position paid $7 per hour plus
benefits; one position which paid an hourly
rate less than or equal to his current
position; a part-time position, which his
position with the preinjury employer is full-
time; and a position which required an HVAC
license which he did not hold. 	We note
Vogel's testimony that an HVAC background was
not required. 	However, the letter sent to
the claimant listed this as a job
requirement, and he testified that the
potential employer informed him that HVAC
licensure was a prerequisite.

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These findings are supported by the testimony of claimant
and Vogel, and demonstrated that the jobs identified by Vogel did
not offer a greater wage than claimant was receiving from
employer. 	Accordingly, we cannot say as a matter of law that the
commission erred in finding that employer failed to prove that
claimant did not cooperate with vocational placement. 	As the
commission correctly noted, employer's contentions that these
jobs offered the earning potential of greater wages and possible
benefits constituted speculation and were not supported by any
evidence.
For these reasons, we affirm the commission's decision.
Affirmed.