Wall Street Deli, Inc., et al. v. John K. O'Brien

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Willis, Bumgardner and Frank
Argued at Alexandria, Virginia
WALL STREET DELI, INC. AND
HARTFORD CASUALTY INSURANCE COMPANY
OPINION BY
v. 	Record No. 1781-99-4 	JUDGE JERE M. H. WILLIS, JR.
APRIL 18, 2000
JOHN KENNETH O'BRIEN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Dawn E. Boyce (Trichilo, Bancroft, McGavin,
Horvath & Judkins, P.C., on brief), for
appellants.
James F. Green (Ashcraft & Gerel, LLP., on
brief), for appellee.
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.

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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

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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 that he made a reasonable
effort to market his residual work capacity. 	See Washington
Metropolitan Area Transit Authority v. Harrison, 228 Va. 598,
601, 324 S.E.2d 654, 662 (1985); Manis Construction Co. v.
Arrellano, 13 Va. App. 292, 293, 411 S.E.2d 233, 234 (1991). 	In
determining whether a partially disabled employee has adequately
marketed his residual work capacity, the commission should
consider the following criteria:
(1) the nature and extent of the
employee's disability;
(2) the employee's training, age,
experience and education;
(3) the nature and extent of the
employee's job search effort;
(4) the employee's intent in conducting
his job search;
(5) the availability in the area of
jobs suitable for the employee, considering
his disability; and

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(6) any other matter affecting the
employee's ability to find suitable
employment.
National Linen Service v. McQuinn, 8 Va. App. 267, 272, 380
S.E.2d 31, 34 (1989).
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. 	See Ford Motor Company v. Hunt, 26 Va.
App. 231, 239, 494 S.E.2d 152, 156 (1997). 	However, that
decision, to be affirmed, must be based upon credible evidence.
The record establishes without contradiction that after
December 23, 1996, O'Brien made no effort to obtain more
suitable and lucrative employment than his custodial job at
Stonybrook Yacht Club. 	He produced no evidence of the
availability or non-availability in the New York area of jobs
more consistent with his education and capabilities. 	He
produced no evidence of any effort on his part to secure or even
to seek such employment. 	The record unquestionably established
an abandonment of effort on his part after December 23, 1996.
Inasmuch as the record establishes an absence of effort on his
part, it fails to support the commission's finding that his
efforts were reasonable.

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The judgment of the commission is reversed. 	Its award of
benefits after December 23, 1996 is vacated. 	Final judgment is
rendered for Wall Street.
Reversed.