Emmett Johnson Jafari v Crater Youth Care Comm.,et

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bray, Annunziata and Frank
EMMETT JOHNSON JAFARI
MEMORANDUM OPINION*
v. 	Record No. 2024-99-2 	PER CURIAM
DECEMBER 28, 1999
CRATER YOUTH CARE COMMISSION
AND VIRGINIA MUNICIPAL GROUP
SELF-INSURANCE ASSOCIATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Emmett J. Jafari, pro se, on brief).
(Ralph L. Whitt, Jr.; Michael P. Del Bueno;
Williams, Lynch & Whitt, P.C., on brief), for
appellees.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Emmett Johnson Jafari (claimant) contends that the Workers'
Compensation Commission (commission) erred in denying him
compensation benefits on the ground that he failed to adequately
market his residual work capacity after August 28, 1998. 	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. 	See Rule 5A:27.
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.
See 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). 	The factors the commission should
consider in deciding whether a claimant has made reasonable good
faith efforts to market his or her remaining capacity are:
(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 review the evidence in the light most
favorable to . . . the party prevailing before the commission."
Id. at 270, 380 S.E.2d at 33. 	Unless we can say as a matter of
law that claimant’s evidence sustained his burden of proof, the
commission’s findings are binding and conclusive upon us. 	See
Tomko v. Michael's Plastering. Co., 210 Va. 697, 699, 173 S.E.2d
833, 835 (1970).
In ruling that claimant failed to prove that he made a good
faith effort to market his residual work capacity, the
commission found as follows:
While the claimant testified to a continuous
employment search beginning in November
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1997, the time frame at issue pertains to
his search for suitable employment after the
[May 31, 1998] injury and [the August 27,
1998] release to light duty. 	At the
Hearing, he named five potential employers
with whom he sought employment, and in his
answers to interrogatories, he list four.
The claimant's other evidence of marketing
consisted of several unsubstantiated and
somewhat conflicting statements of his
attempts to find suitable employment.
First, he testified that he had made between
12 and 14 employment contacts since November
1997. 	Then the claimant testified that he
had made 12 to 14 employment contacts since
July 1998. 	He later testified that he
applied for 8 to 12 positions, in addition
to the 12 to 14. 	These were "guesstimates"
and the claimant did not support this
testimony by identifying any of these
alleged contacts. 	Considering the nature of
his injury, work experience, age, and
skills, this is not adequate proof of
marketing over a period of approximately two
months. 	There were only five specific
contacts identified. 	Also, considering the
relatively brief period between the time of
the Hearing and the relevant marketing
period, it is significant that the claimant
could only specifically identify four to
five contacts.
The commission's findings with respect to claimant's
release to light duty in August 1998 and his marketing efforts
are amply supported by the record. 	Based upon this record and
applying the guidelines enumerated in McGuinn, we cannot find as
a matter of law that claimant proved he adequately marketed his
residual work capacity between August 28, 1998 and November 1,
1998, the date his physician released him to return to work
without restrictions.
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We note that the record does not contain any factual or
legal basis to support claimant's argument that employer should
not have been entitled to rely upon the defense that claimant
failed to adequately market his residual capacity.
For these reasons, we affirm the commission's decision.
Affirmed.
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