                              COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Petty and Alston
Argued at Richmond, Virginia


PLANT PARTNERS AND NATIONWIDE
 AGRIBUSINESS INSURANCE COMPANY
                                                             MEMORANDUM OPINION* BY
v.     Record No. 3102-08-2                                  JUDGE ROSSIE D. ALSTON, JR.
                                                                  OCTOBER 6, 2009
SHEILA A. PITTMAN


            FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

               Michael P. Del Bueno (Brandon R. Jordan; Whitt & Del Bueno, on
               briefs), for appellant

               Wesley G. Marshall for appellee.


       Plant Partners and Nationwide Agribusiness Insurance Company (collectively,

“employer”) appeal a decision of the Workers’ Compensation Commission (“commission”)

awarding ongoing temporary partial disability benefits to Sheila A. Pittman (“claimant”).

Employer argues that the commission erred as a matter of law in awarding the benefits, because

claimant did not make a reasonable effort to market her residual work capacity. 1 For the



       * Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         Employer stated three questions in its appeal brief: (1) Did the commission err as a
matter of law in its majority opinion dated December 1, 2008, by finding that the claimant was
earning all that she “is able to earn” so as to entitle her to temporary partial disability benefits,
under Code § 65.2-502, effective March 31, 2008, when, as of that date, claimant worked only
twenty hours per week, earned significantly less than her pre-injury wage, and ceased all efforts
to find employment thereafter despite the fact that she did not have any medical restriction on the
number of hours per week she was capable of working?; (2) Did the commission err as a matter
of law in its majority opinion dated December 1, 2008, by finding that claimant was excused
from further marketing upon obtaining on March 31, 2008, a part-time job of approximately
twenty hours per week, despite the fact that she did not have any medical restriction on the
number of hours per week she was capable of working?; and (3) Does the Supreme Court of
Virginia’s holding in Ford Motor Co. v. Favinger, 275 Va. 83, 654 S.E.2d 575 (2008), require a
following reasons, we find the commission erred in awarding ongoing temporary disability

benefits to claimant. We reverse the commission’s ruling and remand the matter for further

proceedings consistent with this opinion.

                                        I. BACKGROUND

        As the parties are fully conversant with the record in this case, and because this

memorandum opinion carries no precedential value, this opinion recites only those facts and

incidents of the proceedings as are necessary to the parties’ understanding of this appeal. “On

appeal, we view the evidence in the light most favorable to [employer], the party prevailing

before the commission.” Great E. Resort Corp. v. Gordon, 31 Va. App. 608, 610, 525 S.E.2d 55,

56 (2000) (citing R. G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788,

788 (1990)). On July 17, 2006, Plant Partners employed claimant as a merchandiser. During

one workday, claimant was reaching for a paper towel when an upward-opening cabinet door fell

on her right hand, injuring it. Subsequently, claimant underwent two surgeries to treat the injury.

        On March 17, 2008, claimant filed an amended claim for benefits seeking compensation

for temporary total disability from January 19, 2007, through May 1, 2007, continuing temporary

total disability benefits from January 18, 2008, to the present, and payment of lifetime medical

costs for the injury.

        On May 20, 2008, a deputy commissioner conducted a hearing on the matter. At the

hearing, claimant sought various wage loss benefits, including temporary partial disability

benefits from March 31, 2008, forward. The evidence before the deputy commissioner indicated



claimant seeking temporary partial disability benefits under the auspices of Code § 65.2-502 to
maximize her available earning capacity and earn all that she is “able to earn” by continuing to
seek employment, after procuring part-time work, if she does not have any medical restriction on
the number of hours per work she is capable of working? Because employer addresses these
three questions together, in a single argument in its brief, this Court shall do the same in this
opinion.

                                            -2-
that Ross Department Store (“Ross”) hired claimant as a part-time employee with light duty job

responsibilities on March 31, 2008. At Ross, claimant worked approximately twenty hours per

week, and earned $152.05 per week. Claimant’s pre-injury wage at her previous full-time,

forty-hour per week employment with Plant Partners was $254.44 per week. Claimant presented

no evidence that she continued to seek alternate or additional employment subsequent to March

31, 2008.

         The deputy commissioner awarded claimant ongoing temporary partial disability benefits

of $68.26 per week, beginning March 31, 2008. The deputy commissioner reached this figure

after considering claimant’s pre- and post-injury wages and evidence of ongoing marketing

efforts. 2

         Upon review, the full commission affirmed the deputy commissioner’s decision. In

doing so, the commission found that claimant adequately marketed her residual work capacity.

The commission noted that claimant’s post-injury wages were greater than her temporary total

disability benefits, and posited that the discrepancy created an incentive for claimant to accept

offered employment. The commission further stated,

                In addition, the amount of her new job is not substantially less than
                her pre-injury job[,] and it was a reasonable job since she is unable
                to use her right hand in gainful employment. . . . Given her
                restrictions, we find that she has sufficiently marketed her residual
                capacity in finding this job [at Ross].

         Commissioner Williams dissented from the opinion, finding that claimant had not

presented sufficient evidence that she adequately marketed her residual work capacity after

obtaining the part-time employment at Ross. This appeal followed.




         2
         The deputy commissioner noted, “During the two weeks beginning March 17, 2008, the
claimant contacted nine employers and obtained light duty employment. We find that her efforts
were adequate during this two-week period.”
                                         -3-
                                         II. ANALYSIS

       “An award by the Commission is conclusive and binding as to all questions of fact.”

Ford Motor Co. v. Favinger, 275 Va. 83, 88, 654 S.E.2d 575, 578 (2008) (citing Code

§ 65.2-706(A); Bass v. City of Richmond Police Dep’t, 258 Va. 103, 114, 515 S.E.2d 557, 563

(1999); Stenrich Group v. Jemmott, 251 Va. 186, 192, 467 S.E.2d 795, 798 (1996)). “The

determination as to whether an employee seeking temporary partial disability benefits has made

a reasonable effort to market [her] residual work capacity falls within the Commission’s

fact-finding.” Id. (citing Wall Street Deli, Inc. v. O’Brien, 32 Va. App. 217, 220-21, 527 S.E.2d

451, 453 (2000)). The commission’s factual conclusion on this question will not be disturbed on

appeal if it is supported by credible evidence. Wall Street Deli, 32 Va. App. at 220-21, 527

S.E.2d at 453 (citing Ford Motor Co. v. Hunt, 26 Va. App. 231, 239, 494 S.E.2d 152, 156

(1997)). Thus, the commission’s factual findings are “conclusive and binding only to the extent

that they are predicated upon evidence introduced or appearing in the proceedings.” Favinger,

275 Va. at 88, 654 S.E.2d at 578 (quoting Uninsured Employer’s Fund v. Gabriel, 272 Va. 659,

664, 636 S.E.2d 408, 411 (2006) (internal quotations omitted)). If the commission’s factual

findings are not based on credible evidence, the findings are not binding, ‘“and the question

presented becomes one of law.’” Id. (quoting Great Atl. & Pac. Tea Co. v. Robertson, 218 Va.

1051, 1053, 243 S.E.2d 234, 235 (1978)).

       Pursuant to Code § 65.2-502(A), an employer is required to pay an injured employee with

partial work capacity caused by a work-related injury “a weekly compensation equal to 66 2/3

percent of the difference between [her] average weekly wages before the injury and the average

weekly wages which [s]he is able to earn thereafter, but not more than 100 percent of the average

weekly wage.”




                                           -4-
       On appeal, employer argues that the Workers’ Compensation Act (“Act”) required

claimant to prove she attempted to fully capture as much of her post-injury earning capacity as

possible in order to be entitled to temporary partial disability benefits. The recent Supreme

Court of Virginia case, Favinger, 275 Va. 83, 654 S.E.2d 575, supports employer’s position and

controls our decision in this case. In Favinger, the claimant routinely worked fifty-hour weeks at

Ford, and after a compensable work-related injury, he claimed a wage loss for overtime income

that he did not receive while performing a post-injury light duty job. Id. at 91, 654 S.E.2d at

579. The Supreme Court held that the claimant in Favinger was required to show he made a

reasonable effort to market his residual work capacity, i.e. the additional ten hours of overtime,

in order to be entitled to temporary partial disability benefits for the alleged loss of overtime

income. Id.

       The Court held that an employee claiming temporary partial disability benefits, ‘“[has]

the burden of proving that [s]he [has] made a reasonable effort to procure suitable work but [is]

unable to market [her] remaining capacity.’” Id. at 89, 654 S.E.2d at 578 (quoting Wash. Metro.

Area Transit Auth. v. Harrison, 228 Va. 598, 601, 324 S.E.2d 654, 656 (1985)). The claimant in

Favinger admitted he had not sought any other employment to compensate for his lost overtime

pay. Id. at 90, 654 S.E.2d at 579. Accordingly, the Supreme Court of Virginia found he was not

entitled to temporary partial disability benefits. Id. at 91, 654 S.E.2d at 580.

       In the instant case, the commission concluded “[g]iven claimant’s restrictions, . . . she . . .

sufficiently marketed her residual capacity in finding this job” at Ross. This conclusion was

erroneous as a matter of law, as claimant failed to present evidence, as required by the Favinger

ruling, that she attempted to market her residual work capacity of twenty hours per week after

March 31, 2008. See id. at 90, 654 S.E.2d at 579. Further, claimant presented no evidence that

available jobs within her capacity would have interfered with the duties of her part-time

                                             -5-
employment. See id. at 90-91, 654 S.E.2d at 579. For these reasons, we conclude that the

commission’s award of temporary partial disability benefits to claimant was ‘“not predicated

upon evidence introduced or appearing in the proceeding.’” See id. at 91, 654 S.E.2d at 580

(quoting Vanzant v. Southern Bending Co., 143 Va. 244, 246, 129 S.E. 268, 268 (1925)).

                             III. ATTORNEY’S FEES AND COSTS

       Claimant requests an award of attorney’s fees and costs pursuant to Code § 65.2-713(A),

which grants this Court the authority to assess against employer the costs of these proceedings

including “a reasonable attorney’s fee,” if we determine these “proceedings have been brought,

prosecuted, or defended without reasonable grounds.” See, e.g., Lowes of Short Pump Virginia

v. Campbell, 38 Va. App. 55, 62, 561 S.E.2d 757, 760 (2002) (awarding fees against employer

for appealing “without reasonable grounds”). As employer brought this appeal with reasonable

grounds, we decline to award claimant attorney’s fees and costs.

                                      IV. CONCLUSION

       We conclude that the commission’s award of temporary partial disability benefits to

claimant was not predicated upon evidence introduced or appearing in the proceeding. We will,

therefore, reverse the judgment of the commission, and remand to the commission for the

presentation of evidence as to whether claimant made any efforts to market her residual work

capacity subsequent to March 31, 2008. Furthermore, we deny claimant’s request to award her

attorney’s fees and costs.

                                                                         Reversed and remanded.




                                           -6-
