                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges O’Brien, Russell and Senior Judge Haley
UNPUBLISHED



              MARK CASE
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1866-16-4                                   JUDGE JAMES W. HALEY, JR.
                                                                                  APRIL 18, 2017
              UNITED PARCEL SERVICE AND
               LIBERTY INSURANCE CORPORATION


                            FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                               James R. Becker for appellant. Appellant submitting on brief.

                               Patricia C. Arrighi (PennStuart, on brief), for appellees. Appellees
                               submitting on brief.


                     Mark Case (claimant) maintains the Workers’ Compensation Commission erred in

              finding: (1) that he did not sufficiently market his residual capacity for work while he was on

              light-duty status from November 6, 2015 through February 14, 2016, and (2) in sua sponte

              invoking its Rules. We affirm the Commission’s rulings.

                     Claimant had been employed as a truck driver for United Parcel Service (UPS) for over

              twenty years when he sustained compensable injuries to his left knee on November 5, 2013. The

              Commission awarded him medical benefits and various periods of temporary total and partial

              disability. This appeal concerns Case’s claim for temporary total disability benefits from

              November 6, 2015 through February 14, 2016, a defined time frame.

                     On November 6, 2015, claimant’s orthopedic surgeon authorized him to do light-duty

              work, including some walking and standing, carrying small items, and lifting no more than ten

              pounds. The doctor prescribed “Advil” for pain. Claimant’s surgeon then contacted the


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
insurance carrier to authorize knee replacement surgery for claimant; approval was given on

January 4, 2016, and surgery was performed on February 14, 2016. Claimant was awarded

temporary total disability benefits of $955 per week after his knee surgery.

       After he was placed on light-duty status on November 6, 2015, claimant asked UPS for

light-duty work, but was told none was available. He did not look for other employment. As the

deputy commissioner found: “Here, not once during the three-month period did the claimant

seek employment even within his doctor’s restrictions . . . .” Claimant testified at the hearing on

April 12, 2016, that he had not looked for other work because he was taking narcotic pain

medication that impaired his ability to drive. Claimant testified that even though his doctor had

prescribed only “Advil,” he was continuing to take the oxycodone he still had from earlier

prescriptions because it was more effective in relieving his knee pain. Claimant also testified he

had no means of getting to and from a job. He said that his brother took him to medical

appointments but could not provide transportation to work and that public transportation was not

available. Yet claimant testified that had UPS offered him light-duty work, he would have

stopped taking the pain medications that his doctor was no longer prescribing for him and found

a ride to the job. Claimant was fifty-two years old. He said he had finished the twelfth grade,

had been a car salesman before going to work for UPS, and also had a part-time painting

business before he injured his knee in 2013.

       The deputy commissioner denied the claim on the basis that the medical evidence did not

support a finding of total disability during the time period at issue and that claimant had not

made any effort to market his residual capacity while on light-duty status. The full Commission

unanimously affirmed the deputy commissioner’s opinion.

       Under well-established principles, this Court construes the evidence in the record, and all

reasonable inferences, in the light most favorable to the employer, as it prevailed below. See

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Stillwell v. Lewis Tree Serv., Inc., 47 Va. App. 471, 474, 624 S.E.2d 681, 682 (2006).

“Decisions of the commission as to questions of fact, if supported by credible evidence, are

conclusive and binding upon this Court.” VFP, Inc. v. Shepherd, 39 Va. App. 289, 292, 572

S.E.2d 510, 511 (2002) (quoting WLR Foods v. Cardosa, 26 Va. App. 220, 230, 494 S.E.2d 147,

152 (1997)).

       Claimant argues the Commission’s ruling is not supported by credible evidence because

the Commission failed to consider his remaining work capacity, the effect of the medications he

was taking, his lack of transportation, and his unsuccessful request for light-duty work with UPS.

The Commission’s opinion, however, reflects that these factors were considered and were

rejected, as the Commission found claimant “failed to establish sufficient justification to excuse

his complete lack of marketing during this period of partial disability.” See Ford Motor Co. v.

Favinger, 275 Va. 83, 89, 654 S.E.2d 575, 578 (2008) (stating employee “[has] the burden of

proving that he [has] made a reasonable effort to procure suitable work but [is] unable to market

his remaining work capacity” (quoting Washington Metro. Area Transit Auth. v. Harrison, 228

Va. 598, 601, 324 S.E.2d 654, 656 (1985))); see also McKellar v. Northrop Grumman Shipbldg,

Inc., 290 Va. 349, 357, 777 S.E.2d 857, 861 (2015) (Code § 65.2-502, governing cases of partial

incapacity, presumes injured employee receiving temporary partial disability benefits is able to

continue working on restricted duty or to get another job).

       What constitutes a “reasonable effort” by a claimant is determined on a case-by-case

basis. Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 467, 359 S.E.2d 98, 102 (1987)

(stating that “[w]hat is reasonable in one area, or in one industry, or even in one season might not

be reasonable in another”). Factors to be considered include:

               (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
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               the area suitable for the employee, considering his disability; and
               (6) any other matter affecting [the] employee’s capacity to find
               suitable employment.

Ford Motor Co., 275 Va. at 90, 654 S.E.2d at 579 (citing Nat’l Linen Serv. v. McGuinn, 8

Va. App. 267, 272, 380 S.E.2d 31, 34 (1989) (footnotes omitted)). The significance to be given

to these factors in a particular case is for the Commission to determine. See Nat’l Linen Serv., 8

Va. App. at 272-73, 380 S.E.2d at 34-35.

       The record establishes that claimant’s doctor had placed him on light-duty status and had

prescribed only “Advil” instead of the narcotic pain medications that claimant continued to take

of his own volition. The medical evidence supported the Commission’s finding that claimant

was not totally disabled during the period at issue. Claimant admitted that he had not sought

other employment after UPS told him no light-duty work was available. The evidence thus

established that claimant failed to market his residual capacity, as he was required to do to

receive partial disability benefits. See Ford Motor Co., 275 Va. at 90, 654 S.E.2d at 579; Nat’l

Linen Serv., 8 Va. App. at 272-73, 380 S.E.2d at 34-35.

       Claimant asserts the insurer’s delay in approving the knee replacement surgery increased

the time period at issue and thus the Commission should have found claimant’s failure to market

was excused. See Holly Farms Foods, Inc. v. Carter, 15 Va. App. 29, 42, 422 S.E.2d 165, 171

(1992) (affirming deputy commissioner’s finding that requiring employee, who was disabled for

eight days, to seek employment with other employers in order to be eligible for benefits was

“unreasonable”); see also Stevens v. Anheuser Busch Co., Inc., VWC No. 170-15-08, 1995

VA Wrk. Comp. LEXIS 2795 (VA Wrk. Comp. Sept. 25, 1995) (holding employee was entitled

to disability benefits without having marketed his residual capacity, as the period of disability

was less than four weeks, he was undergoing physical therapy during that time, and he returned

to work as expected); Dalton v. Tultex Corp., VWC No. 129-75-99, 1987 VA Wrk. Comp.

                                                -4-
LEXIS 98 (VA Wrk. Comp. Oct. 16, 1987) (reversing deputy commissioner’s opinion that five

weeks was adequate time for employee to have sought other work, as during part of this time, he

had his arm in a sling, was receiving daily physical therapy, and saw his doctor weekly).

Claimant, however, was on light-duty status for slightly longer than three months. And he did

not testify at the 2016 hearing that his impending surgery was a factor in not seeking other

employment after UPS declined to give him a sedentary job. Indeed, as noted above, claimant

said he would have taken a job with UPS if it had been offered.

       Claimant also contends the Commission erred in raising a sua sponte objection to

claimant’s presenting allegedly after-discovered evidence to the full Commission that was not

presented to the deputy commissioner. Although the Commission did not specifically identify

this information, it appears from the record that this material included a pharmacy record

showing claimant was prescribed Tramadol in March 2016 and information regarding the effects

of the drug. The Commission noted that it found no basis for considering evidence that had not

been presented at the hearing before the deputy commissioner and that the proffered evidence, if

considered, would not have resulted in a different outcome in the case.

       Rule 3.3 of the Rules of the Virginia Workers’ Compensation Commission provides that

the Commission will consider additional evidence presented after a hearing has been held only

when the evidence is “absolutely necessary and advisable” and conforms to the same rules for

introducing after-discovered evidence as are used by trial courts in the Commonwealth. The

Commission has the authority to interpret and enforce its rules. See Arellano v. Pam E. K’s

Donuts Shop, 26 Va. App. 478, 482-83, 495 S.E.2d 519, 521 (1998). When challenged on

appeal, the Commission’s interpretation of its rules “will be accorded great deference and will

not be set aside unless arbitrary or capricious.” Estate of Kiser v. Pulaski Furniture Co., 41




                                                -5-
Va. App. 293, 299, 548 S.E.2d 464, 467 (2003) (quoting Rusty’s Welding Serv., Inc. v. Gibson,

29 Va. App. 119, 129 n.2, 510 S.E.2d 255, 260 n.2 (1999)).

       The requirements for admitting after-discovered evidence are that the evidence must have

been discovered after the hearing, could not have been discovered before the hearing by the

exercise of due diligence, must not be cumulative, corroborative, or collateral, and must be of

such a character as to produce a different result. See Williams v. People’s Life Ins. Co., 19

Va. App. 530, 532, 452 S.E.2d 881, 883 (1995). None of the proffered evidence meets these

requirements. For example, evidence that he was taking narcotic drugs was presented at the

hearing before the deputy commissioner. Evidence that claimant was taking Tramadol was

cumulative, and claimant has not shown that this evidence could not have been discovered before

the hearing. More importantly, the pharmacy record claimant submitted shows he was

prescribed Tramadol in March 2016, which was not within the time period at issue. Thus the

evidence was not relevant or material. There is no basis on which to find the additional

evidence, if considered, would have resulted in a different outcome; in fact, the Commission

expressly found that the evidence, if considered, would not have altered the outcome.

Accordingly, we find the Commission did not err in declining to consider claimant’s additional

evidence. See Georgia Pacific Corp. v. Dancy, 24 Va. App. 430, 438-40, 482 S.E.2d 867, 872

(1997) (holding Commission did not err in not allowing consideration of letter from claimant’s

doctor that was submitted after the hearing, as letter could have been obtained before the hearing

and did not contain any new medical information), aff’d, 255 Va. 248, 497 S.E.2d 133 (1998);

Williams, 19 Va. App. at 533, 452 S.E.2d at 883 (holding Commission did not err in refusing to

reopen hearing to allow claimant to present additional medical evidence); cf. Kiser, 41 Va. App.

at 298-99, 548 S.E.2d at 467 (holding Commission properly accepted testimony from witness




                                               -6-
whose first-hand knowledge of employee’s injury was discovered after hearing was held but

while record was open for additional medical evidence).

                                                                                    Affirmed.




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