                    COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Agee and Senior Judge Overton
Argued at Alexandria, Virginia


JHOVANNA G. ROCHA
                                          MEMORANDUM OPINION* BY
v.   Record No. 1294-01-4                  JUDGE G. STEVEN AGEE
                                              MARCH 12, 2002
FALCON'S LANDING AND
 ACE AMERICAN INSURANCE COMPANY


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            Julie H. Heiden (Koonz, McKenney, Johnson,
            DePaolis & Lightfoot, on brief), for
            appellant.

            Douglas A. Seymour (Siciliano, Ellis,
            Dyer & Boccarosse, on brief), for appellees.


     Jhovanna Rocha (the claimant) appeals the decision of the

Workers' Compensation Commission (the commission) denying her

claim for disability benefits from Falcon's Landing and its

insurer, Ace American Insurance Company, (herein, collectively,

referred to as "the employer").    She contends the commission

erred in setting aside its previous September 15, 1998 award and

in finding that she failed to reasonably market her residual

work capacity.    Finding no error, we affirm the commission's

decision.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, only those facts necessary to a disposition of this

appeal are recited.

                          I.   BACKGROUND

     The claimant sustained a left knee injury on July 9, 1996,

while in the course of her employment with the employer.     Her

claim was accepted as compensable, and the claimant received

temporary total disability benefits pursuant to the parties'

agreement until she returned to work in October 1996.

     On December 4, 1997, the claimant filed a claim seeking

temporary total disability benefits from July 9, 1996 and

continuing.   She also sought permanent partial disability

benefits.   A second claim was filed on April 24, 1998, in which

the claimant sought benefits for her pending knee surgery.

These claims were scheduled for a hearing on August 28, 1998.

     On August 21, 1998, the employer's insurer at the time

filed a Supplemental Memorandum of Agreement with the commission

which provided the claimant temporary total disability benefits.

However, at the August 28, 1998 hearing the employer contended

the claimant was not entitled to the benefits she sought.

Neither party at the hearing mentioned the August 21 agreement

filed by the carrier.

     Unrelated to the hearing, the commission entered a

supplemental award order dated September 15, 1998, awarding the

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claimant temporary total disability benefits at the weekly rate

of $283.83 beginning June 12, 1998, and continuing, based on the

August 21, 1998 agreement.

     Based on the August 28, 1998 hearing, a deputy

commissioner, on November 6, 1998, entered an award for

temporary partial disability benefits, from March 18, 1998

through May 24, 1998, and for temporary total disability

benefits from May 25, 1998 through June 11, 1998.   The

claimant's request for benefits after June 12, 1998, and her

request for medical benefits covering her knee surgery, were

denied based on a finding that the surgery and resulting

disability were not causally related to the compensable 1996

accident.   The claimant requested a review of the decision by

the commission.   Upon review, the commission remanded the case

to the deputy commissioner for reconsideration because the

September 15, 1998 award appeared to be outstanding and

contradictory.

     The deputy commissioner held on remand that the September

15, 1998 award was controlling and pursuant to that award, the

claimant was awarded temporary partial disability benefits from

March 18, 1998 through May 24, 1998, and continuing temporary

total disability benefits beginning on June 12, 1998.     Based

upon the deputy commissioner's own findings, the claimant was

also awarded temporary total disability benefits from May 25,

1998 through June 11, 1998.

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     Upon review again, the commission held (1) the employer's

insurer erroneously filed the supplemental agreement and the

doctrine of imposition should be applied to vacate the September

15, 1998 award; (2) the employer was responsible for the medical

expenses of the June 12, 1998 surgery, and (3) the claimant was

entitled to disability benefits from June 12, 1998 to July 2,

1998, but to none thereafter.    The claimant appeals.

            II.   VACATION OF THE SEPTEMBER 15, 1998 AWARD

     The claimant appeals the commission's decision to vacate

its earlier award.    However, she fails to present any facts or

case law to demonstrate the commission erred.

     The General Assembly has granted "the Commission the power

and authority not only to make and enforce its awards, but

protect itself and its awards from fraud, imposition, and

mistake."    Collins v. Dept. of Alcoholic Bev. Con., 21 Va. App.

671, 679-80, 467 S.E.2d 279, 283, aff'd en banc, 22 Va. App.

625, 472 S.E.2d 287 (1996).    Imposition is based on the

principle that "the commission has 'jurisdiction to do full and

complete justice in each case,' . . . even though no fraud,

mistake or concealment has been shown."     Avon Products, Inc. v.

Ross, 14 Va. App. 1, 7, 415 S.E.2d 225, 228 (1992) (internal

citation omitted).

     The commission's decision to vacate is binding and

conclusive upon us unless we can say as a matter of law that the

employer's evidence failed to provide a basis upon which the

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commission could vacate the earlier award.   See generally Tomko

v. Michael's Plastering Co., 210 Va. 697, 173 S.E.2d 833 (1970).

Here, the commission was presented with clear and convincing

evidence that the August 21, 1998 agreement, resulting in the

September 15, 1998 award, was filed by mistake while the

employer was in the process of challenging the claimant's

submitted claims for benefits covered by the award.   The

claimant fails to present any evidence and/or case law to

support her position that the commission abused its discretion

in light of the employer's evidence.   We, therefore, affirm the

commission's decision to vacate the September 15, 1998 award.

                    III.   DISABILITY BENEFITS

     The commission, after vacating the previous award,

considered whether the claimant was entitled to temporary total

disability benefits for June 12, 1998 through August 28, 1998,

and/or medical benefits covering the June 12, 1998 surgery.    Its

decision was to award medical benefits to the claimant, which

are not the subject of this appeal, but to deny her disability

benefits due to her failure to market her residual ability.    The

claimant challenges this decision to terminate her benefits;

however, she fails to present any evidence and/or case law to

support her position.   In light of the evidence before the

commission, we affirm its decision.

     A partially disabled employee is required to make

reasonable efforts to market his residual earning capacity to be

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entitled to receive continued benefits.     See National Linen

Serv. v. McGuinn, 8 Va. App. 267, 269, 380 S.E.2d 31, 33 (1989).

"In determining whether a claimant has made a reasonable effort

to market his remaining work capacity, we view the evidence in

the light most favorable to . . . the prevailing party before

the commission."     Id. at 270, 380 S.E.2d at 33.   "What

constitutes a reasonable marketing effort depends upon the facts

and circumstances of each case."     Greif Companies (GENESCO) v.

Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318 (1993).

        Claimant was released to light duty work on July 2, 1998.

At that time, the employer did not have an appropriate position

available for the claimant.    The claimant sought employment

within her restrictions "by looking in the newspaper" and

placing three calls seeking employment through August 10, 1998.

Her attempts were unsuccessful.

        On August 11, 1998, the claimant returned to work for the

employer as a hostess.    However, after a few hours she was

unable to continue her shift.    Between August 11, 1998 and

August 26, 1998, the claimant contacted eleven employers,

registered with an employment agency and the Virginia Employment

Commission.    She returned to work with the employer on August

29, 1998, and agreed to a termination of benefits as of that

date.

        The commission found that the claimant's efforts were not

reasonable.    Credible evidence, i.e., the claimant's testimony

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and her minimal list of contacts, supports the commission's

finding that she failed to make reasonable efforts to market her

residual earning capacity.   Therefore, the commission's decision

will not be disturbed on appeal and is affirmed.

                                                         Affirmed.




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