                    COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Felton and Senior Judge Hodges
Argued at Chesapeake, Virginia


NORFOLK SHIPBUILDING &
 DRY DOCK CORPORATION
                                         MEMORANDUM OPINION* BY
v.   Record No. 0428-02-1                 JUDGE LARRY G. ELDER
                                             OCTOBER 1, 2002
JAMES J. McCLEARY


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Amanda R. Castel (Taylor & Walker, P.C., on
          briefs), for appellant.

          Chandra Wilson Stepney (Robert J. MacBeth,
          Jr.; Rutter, Walsh, Mills & Rutter, on
          brief), for appellee.


     Norfolk Shipbuilding & Dry Dock Corporation (employer)

appeals from a decision of the Workers' Compensation Commission

(the commission) awarding temporary total disability benefits to

James J. McCleary (claimant).   On appeal, employer contends the

commission erroneously accepted claimant's late-filed written

statement of September 7, 2001.   It also argues that the

commission's award of temporary total disability benefits to

claimant for the period of time he participated in vocational

rehabilitation sponsored by the Office of Workers' Compensation

Programs (OWCP) of the United States Department of Labor


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
constituted an erroneous ruling that this participation, as a

matter of law, satisfied claimant's duty to market his residual

work capacity under the Virginia Workers' Compensation Act (the

VWCA). 1

     We hold the time of filing of the written statement that

employer challenges is irrelevant in this appeal because that

statement pertained only to claimant's cross-appeal to the

commission, not a part of the appeal before this Court.

Further, we hold credible evidence supported a finding that

claimant adequately marketed his residual capacity during the

disputed periods of time through May 10, 2000.    Thus, we affirm

the commission's award of benefits for these periods. 2

                                I.

             CLAIMANT'S LATE-FILED WRITTEN STATEMENT

     Following the deputy commissioner's award of benefits for

the disputed periods of time prior to May 10, 2000, and denying

benefits from May 10, 2000 forward, both parties filed

independent requests for review.     Employer requested review of


     1
       Although claimant originally sought to reframe the issue
as whether he unreasonably refused employer's offer of
vocational rehabilitation, the parties agreed at oral argument
that the sole issue before us on appeal is whether claimant
adequately marketed his residual capacity for all periods up to
May 10, 2000, when he was partially disabled. Thus, on the
merits of this appeal, we consider only the marketing issue.
     2
       Claimant originally sought benefits continuing after May
10, 2000, but the deputy commissioner and commission denied this
claim, and claimant does not contest that denial on appeal to
this Court.
                             - 2 -
the deputy's decision awarding benefits for the period prior to

May 10, 2000, and claimant requested review of the deputy's

denial of benefits from May 10, 2000 forward.      Employer's

written statement in support of its request for review, sent by

certified mail, was dated August 29, 2001, and claimant's reply

to employer's written statement, also sent by certified mail,

was dated September 10, 2001.

     Employer does not contest the timeliness of claimant's

filing of his September 10, 2001 reply to employer's written

statement.   Rather, he contests the timeliness of claimant's

document dated September 7, 2001.       The challenged document

purports to be "claimant's Written Statement in regards to

Employer's request for review of . . . Deputy Commissioner

Wilder's April 30, 2001 Opinion . . . ."      (Emphasis added).

However, a review of the text of that document makes clear that

it contains argument only on the subject of claimant's

independent request for review of the deputy's decision and does

not respond to any arguments contained in employer's written

statement.

     Because claimant did not appeal to this Court the

commission's ruling denying benefits from May 10, 2000 forward,

the issue of the timeliness of claimant's filing of his

independent written statement dated September 7, 2001 is not

before us on appeal.   Thus, we dismiss this portion of

employer's appeal.
                                - 3 -
                                  II.

         CLAIMANT'S DUTY TO MARKET HIS RESIDUAL CAPACITY

     "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."      Wall

Street Deli, Inc. v. O'Brien, 32 Va. App. 217, 220, 527 S.E.2d

451, 453 (2000).    In determining whether the employee has met

his burden of proof, the commission should consider the

following:

             (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; (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 [the] employee's capacity to find
             suitable employment.

Nat'l Linen Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d

31, 34 (1989) (footnotes omitted).      Other matters affecting the

employee's ability to find suitable employment include whether

"the employer availed itself of its opportunity to assist the

claimant in obtaining employment" and, if so, "whether the

[claimant] cooperated" with those efforts.      Id. at 272 n.5, 380

S.E.2d at 34 n.5; see also Code § 65.2-603(A)(3), (B) (stating

that employer may offer vocational rehabilitation services,

independently or at direction of commission and that employee's

"unjustified refusal" of such services justifies suspension of
                             - 4 -
benefits).   The commission also may consider "whether [the

employee] is capable of being retrained."     McGuinn, 8 Va. App.

at 272 n.5, 380 S.E.2d at 34 n.5.

     Ultimately, "[t]he commission . . . determines which of

these or other factors are more or less significant with regard

to a particular case," id. at 273, 380 S.E.2d at 34-35, and

"[w]hat constitutes a reasonable marketing effort depends on the

facts and circumstances of each case," Greif Cos. v. Sipe, 16

Va. App. 709, 715, 434 S.E.2d 314, 318 (1993).    The decision of

the commission "on [this] question, if supported by credible

evidence, will not be disturbed on appeal."     O'Brien, 32

Va. App. at 220-21, 527 S.E.2d at 453.

     Here, employer contends the commission found, as a matter

of law, that claimant's participation in the OWCP vocational

rehabilitation program constituted adequate marketing of

claimant's residual capacity and that this finding was

erroneous.   We disagree.

     First, the commission did not hold that any claimant's

participation in OWCP-sponsored vocational rehabilitation

satisfies that claimant's duty to market his residual capacity

under the VWCA as a matter of law.   It merely affirmed the

deputy's ruling that this "claimant's involvement with the

vocational rehabilitation program offered by the Department of

Labor under the Federal [LHWCA] met his obligations under the

[VWCA] until May 10, 2000."   (Emphases added).
                              - 5 -
     Second, credible evidence in the record supported that

finding.   Claimant was released to work with restrictions in

April 1998.   That same month, OWCP informed claimant that he was

a candidate for OWCP's vocational rehabilitation services, and

it referred him to Vocational Counselor George Davis.   During

May and June 1998, Davis performed vocational counseling and

testing, reviewed information regarding claimant's medical

status, and performed a labor market survey to identify

available positions in the local labor market which were

suitable for claimant's abilities.   Although claimant had a high

school education, an above average I.Q., and thirty years

combined experience as an electrician for the Navy and employer,

he was 50 years old and had no other transferable skills.    Davis

noted that "very few positions meet [claimant's] work

restrictions" and that "most positions [he] is physically able

to perform, such as clerical, counseling or computer, will

require additional skills."   Despite these limitations, Davis

helped claimant prepare a resume and cover letter, target and

apply for suitable jobs, and evaluate various opportunities for

retraining in related fields.

     Davis's efforts on claimant's behalf were hindered when

claimant underwent surgery shortly after vocational

rehabilitation efforts began and remained disabled for a period

of time afterward.   After claimant recuperated, employer laid

claimant off, and Davis focused his efforts on obtaining
                             - 6 -
employment for claimant with another employer.    When claimant's

condition improved significantly, he was able to return to work

for employer with only limited restrictions, but his condition

worsened, and he was unable to maintain that employment.

     Thereafter, Davis helped claimant investigate the

possibility of utilizing his electrical skills for retraining in

the heating and air conditioning field.   Claimant had planned to

enroll in Tidewater Community College to achieve this goal, but

his treating physician concluded work in that field would be too

strenuous for him.   When Davis remained unable to locate

employment for claimant for several more months, they arranged

for claimant to enter a computer training program in "Microsoft

Engineering" which was designed to lead to sedentary employment.

Claimant met the minimal requirements for that training program

until the Spring of 2000, when he failed to take a test

necessary to allow him to progress to the next phase of the

program.   Shortly thereafter, on May 10, 2000, OWCP terminated

his participation in its vocational rehabilitation program based

on his non-cooperation.

     Davis prepared detailed reports documenting his job search

efforts on claimant's behalf, and he ceased his

placement/retraining efforts on only three occasions--when

claimant had surgery and was temporarily and totally disabled,

when claimant returned to work for employer at his pre-injury

wage, and when claimant entered the training program in
                             - 7 -
Microsoft Engineering which was expected to lead to claimant's

finding appropriate employment.

     Although no evidence established that claimant sought

employment on his own, Davis, a trained vocational counselor

approved by OWCP, sought employment on claimant's behalf.    The

commission was free to conclude that Davis's efforts to obtain

retraining and locate employment for claimant could be

attributed to claimant for purposes of evaluating claimant's

marketing efforts and that, if Davis could not locate

appropriate employment for claimant before claimant completed

the Microsoft training program, claimant was unlikely to obtain

such employment on his own.

     Further, the record supported findings (1) that Davis's

efforts were appropriate in light of claimant's disability,

training and experience, and the local job market, cf. Va. Int'l

Terminals, Inc. v. Moore, 22 Va. App. 396, 401-02, 470 S.E.2d

574, 577 (1996) (holding credible evidence supported

commission's finding that job search efforts were reasonable

where "claimant's list of employers . . . [was] not an extensive

record for marketing efforts" but commission observed that

claimant "[could] read and write at only a second or third grade

level"), aff'd on other grounds, 254 Va. 46, 486 S.E.2d 528

(1997), and (2) that claimant participated in Davis's efforts in

good faith during all disputed periods through May 10, 2000,

when he was terminated from the OWCP program.   Thus, credible
                             - 8 -
evidence supported a finding that claimant's good-faith

participation in Davis's appropriate placement efforts proved

adequate marketing of claimant's residual capacity.

     Finally, the commission expressly found that claimant's

refusal to cooperate with employer's vocational rehabilitation

services prior to May 10, 2000--a component of the marketing

issue--was not unjustified.   McGuinn, 8 Va. App. at 272 n.5, 380

S.E.2d at 34 n.5 (noting that as part of determining whether

employee marketed his residual capacity, commission should

consider whether employee cooperated with employer's efforts to

assist employee in obtaining employment).   When employer's

vocational counselor first contacted claimant in June 1998,

claimant had already begun vocational testing and counseling

with George Davis, an OWCP counselor.   As outlined above, the

evidence also supported a finding that Davis engaged in ongoing

efforts to obtain retraining and locate employment suitable to

claimant's skills and abilities and that claimant cooperated

with Davis's efforts until shortly before claimant was

terminated from the OWCP program in May 2000.   Thus, the

evidence supported the commission's finding that claimant's

refusal to cooperate with employer's vocational counselor was

not unjustified.   Cf. Metro Mach. Corp. v. Sowers, 33 Va. App.

197, 208, 532 S.E.2d 341, 346-47 (2000) (holding credible

evidence supported commission's conclusion that employee's

refusal to cooperate with employer's vocational rehabilitation
                             - 9 -
was justified where employee "was actively participating with

the Virginia Employment Commission's vocational rehabilitation

and seeking appropriate employment").

     We do not view the commission's holding as a determination

that every claimant who participates in vocational

rehabilitation through OWCP or any similar program satisfies his

duty to market under the VWCA as a matter of law.    As discussed

above, "[w]hat constitutes a reasonable marketing effort depends

on the facts and circumstances of each case."   Sipe, 16 Va. App.

at 715, 434 S.E.2d at 318.   Nor do we view the commission's

holding as a determination that every claimant who participates

in vocational rehabilitation through OWCP or any similar program

but declines vocational rehabilitation offered by his or her

employer under the VWCA is justified, as a matter of law, in

doing so.   Rather, it is within the discretion of the commission

to determine in each particular case whether "the circumstances

justified the refusal."   Code § 65.2-603(B); see McGuinn, 8 Va.

App. at 272 n.5, 380 S.E.2d at 34 n.5.

     For these reasons, we hold credible evidence supports the

commission's finding that claimant "met his obligations under

the [VWCA] until May 10, 2000."

                               III.

     We dismiss employer's appeal insofar as it claims the

commission erroneously accepted claimant's submission of


                              - 10 -
September 7, 2001, and we affirm the award of benefits for the

disputed dates up to May 10, 2000.

                                              Dismissed in part,
                                              and award affirmed.




                             - 11 -
