                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Lemons ∗
Argued at Richmond, Virginia


WHW, INC. AND
 SELECTIVE INSURANCE COMPANY OF AMERICA
                                           MEMORANDUM OPINION ∗∗ BY
v.   Record No. 1460-99-2                 JUDGE SAM W. COLEMAN III
                                                JULY 5, 2000
EDWARD CALVIN BRISTOW


          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            S. Vernon Priddy III (Patsy L. Mundy; Sands,
            Anderson, Marks & Miller, on briefs), for
            appellants.

            William R. Curdts (Dunton, Simmons, & Dunton,
            L.L.P., on brief), for appellee.


     WHW, Inc. and its insurer, Selective Insurance Company of

America, appeal from the commission's award of temporary total

disability benefits to Edward Calvin Bristow.      WHW argues that

the commission erred in finding that Bristow had not

constructively refused selective employment and that Bristow

reasonably marketed his residual capacity.     Bristow

cross-appeals, arguing that the commission erred in sua sponte


     ∗
       Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
     ∗∗
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
terminating his benefits as of January 27, 1998.     We disagree

and affirm the commission's decision.

                           I.    BACKGROUND

     On April 25, 1996, Bristow suffered a compensable neck,

back, and head injury in a motor vehicle accident while working

for WHW.   Bristow was awarded temporary total disability

benefits from April 25 through October 10, 1996, when he was

returned to light-duty work.

     After returning to light-duty work, Bristow did not seek

medical treatment for his injury between February 1997 to

November 1997.   Bristow testified that after being released to

light-duty work, he nonetheless continued to experience lower

back pain.   He testified that he did not seek additional medical

treatment for the pain during this period because he believed

that WHW would not pay for the treatment.     On November 14, 1997,

complaining of lower back and neck pain, Bristow sought medical

treatment from his treating physician, Dr. George C. Green.

Bristow's treating physician diagnosed Bristow with chronic low

back sprain and instructed Bristow not to work with heavy

equipment for three weeks.      On December 3, 1997, Bristow

suffered a stroke, which affected, among other things, his

speech.    On December 10, 1997, Bristow saw Dr. Green for a

follow-up visit, and Bristow reported to Dr. Green that he had

not worked for three weeks, as prescribed, and that he was not


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experiencing any back or neck pain.    Based on this examination,

Dr. Green opined that the vibrations from working as a heavy

equipment operator exacerbated Bristow's back injury and that

Bristow could not "return to his work as a heavy equipment

operator as the vibrations probably were exacerbating his

symptoms."

     Dr. James R. Robusto, Bristow's family practitioner,

examined Bristow on December 15, 1997, and reported that as a

result of the stroke, Bristow had experienced excessive aphasia

and right facial weakness.   Dr. Robusto noted that the only

residual effect from the stroke was speech difficulties for

which Bristow was receiving therapy.

     Within weeks of having the stroke, Bristow attempted to

return to work because of financial considerations.   He

testified that he still experienced back pain and that the

stroke left him with a speech impediment.   On the day he

returned to work, his employer informed him that he was no

longer able to work for the company because his speech

impediment posed safety concerns.   Bristow's supervisor

testified that, except for Bristow's speech impediment, he would

have been allowed to return to work.

     On March 26, 1998, Bristow filed a claim with the

commission seeking temporary total disability benefits, alleging

an additional period of disability from December 10, 1997 and


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continuing.    The commission awarded benefits from December 10,

1997 through January 27, 1998, finding that Bristow had

adequately marketed his residual capacity and that he was

temporarily totally disabled.     The commission found that Bristow

presented evidence proving only that his disability extended

through January 27, 1998; thus, the commission did not address

whether Bristow's disability extended beyond that date.

                            II.   ANALYSIS

     On appeal, we view the evidence in the light most favorable

to Bristow, the prevailing party.         See R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).        We

accept the commission's factual findings when they are supported

by credible evidence.    See James v. Capitol Steel Constr. Co.,

8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

          A.    Ability to Return to Selective Employment

     WHW argues that the commission erred by finding that the

rule articulated in American Furniture Co. v. Doane, 230 Va. 39,

334 S.E.2d 548 (1985), and as applied by this Court in Eppling

v. Schultz Dining Programs/Commonwealth of Va., 18 Va. App. 125,

442 S.E.2d 219 (1994), is not applicable.        WHW further argues

that the commission erred in determining that Bristow had not

constructively refused selective employment.        WHW asserts that

after Bristow suffered a stroke which left him with a speech

impediment, he was unable to safely perform the duties of his


                                  - 4 -
light-duty employment.   Thus, because Bristow's inability to

perform the light-duty work was caused by a factor unrelated to

his industrial accident, his inability to perform the light-duty

work was tantamount to a refusal of selective employment.

     In Doane, the employee suffered a work-related injury to

her back.   After the employee had surgery and recovered, the

attending physician released Doane to return to light-duty work.

Doane, however, failed to report for light-duty work because of

impairments to her hand, which were unrelated to and developed

after her back injury.   Doane's treating physician opined that

the injury resulting from the industrial accident did not

preclude her from performing the offered selective employment.

     The Supreme Court found the employer had met its burden of

producing evidence that the selective employment offered to

Doane was within her residual capacity.   The Court found that

Doane, however, failed to show she was justified in refusing the

selective employment.    The Supreme Court ruled that Doane failed

to show the necessary causal connection between her arm

impairment and her compensable injury.    The Court held that

"[a]n employer, therefore, is absolved of liability for

compensation if the employee refuses selective employment

because of a physical condition unrelated to the original

industrial accident and arising since the accident."    Doane, 230

Va. at 43, 334 S.E.2d at 550.


                                - 5 -
     In Eppling, the employee suffered a compensable injury and

was subsequently returned to light-duty work.      The employee

accepted the light-duty work, but after one month was terminated

because of excessive absences caused by health problems

unrelated to her compensable injury.       The commission found that

because the employee was terminated for cause, she was

permanently barred from receiving compensation benefits.      We

held that the employee's inability to perform her selective

employment because of unrelated health problems did not bar her

from seeking reinstatement of her workers' compensation

benefits.    However, we stated,

             [w]hen a non-work-related disability
             prevents a partially disabled employee from
             returning to his or her pre-injury work or
             from accepting selective employment, for
             purposes of the Act, the unrelated
             disability is not justification for the
             employee to refuse or not to perform
             selective employment or to fail to market
             his or her residual work capacity. Thus,
             the inability of a disabled employee to do
             selective work or to market his or her
             residual capacity due to an unrelated
             disability is equivalent to an unjustified
             refusal of selective employment.

Eppling, 18 Va. App. at 130, 442 S.E.2d at 222 (citation

omitted).

     We find that WHW's reliance on Doane and Eppling are

misplaced.    In September 1996, Bristow was released to

light-duty work with several restrictions.      Dr. Green restricted

Bristow to no prolonged sitting or standing, lifting no more

                                   - 6 -
than twenty pounds, and operating only an excavator and tractor.

Dr. Green also advised that Bristow take as many breaks as

necessary.   Bristow's medical records reflect that he continued

to experience back pain.   Bristow was treated again on

November 14, 1997, when Dr. Green restricted Bristow from

operating any heavy machinery for three weeks.    Bristow's

treating physician restricted Bristow's work activity and never

released him to his pre-injury work.   "The threshold test for

compensability is whether the employee is 'able fully to perform

the duties of his pre[-]injury employment.'"     Celanese Fibers

Co. v. Johnson, 229 Va. 117, 120, 326 S.E.2d 687, 690 (1985)

(quoting Sky Chefs, Inc. v. Rogers, 222 Va. 800, 805, 284 S.E.2d

605, 607 (1981)).

     Credible evidence supports the commission's finding that

Bristow continued to suffer back pain caused by his compensable

injury until and continuing after his stroke on December 3, 1997

and that he was partially disabled due to the industrial

accident as of December 3, 1997.   Thus, Bristow continued to be

partially disabled, and his "inability" to perform the

light-duty work was not based upon an unrelated disability that

prevented him from performing the work, but rather upon the

employer's decision that he not be permitted to do the work.




                               - 7 -
                   B.   Marketing Residual Capacity

     WHW argues that the commission erred in finding that

Bristow adequately marketed his residual earning capacity after

his stroke.

     A partially disabled employee is required to make

reasonable efforts to market his residual earning capacity to be

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).         We hold

that the commission did not err in determining that claimant

adequately marketed his residual work capacity.

     Here, the commission noted that Bristow's intervening

stroke affected his capacity to find suitable employment,

particularly in light of his work-related partial disability.

Dr. Harris opined that considering the type of labor in which

Bristow was experienced and capable of performing, and in light

of his training and educational level, he was "unemployable and

disabled for purposes of Social Security disability."         Although


                                 - 8 -
Bristow's testimony was "vague" and did not clearly show what

efforts he had made to market his work capacity after the

stroke, the commission relied upon Dr. Harris' January 5, 1998

report which indicated that Bristow had job interviews scheduled

"through the state" before the stroke but, after the stroke, he

was not able to get an interview.   In addition, he was ready and

willing to return to light-duty work with his employer.   In

light of Bristow's level of education; prior work history, work

which he cannot now perform; and physical limitations from the

industrial accident and the stroke, the commission found that

Bristow made a reasonable effort to market his residual

capacity.   Although the evidence of Bristow's efforts to secure

other employment is minimal, it appears that Bristow made

efforts under difficult circumstances to obtain job interviews

but was unable to secure the interviews.   We find that the

commission's holding is supported by credible evidence.

                    C.   Termination of Benefits

     Bristow argues that the commission erred in sua sponte

closing the period of disability without evidence of when the

disability ended or was expected to end.   He further argues that

the date the commission selected as the date the disability

period ended was an arbitrary date that lacks support in the

record.




                                - 9 -
     The commission determined that Bristow failed to show a

continuing disability beyond January 27, 1998, the date that his

last medical report showed he was to receive medical treatment

or attention.   "There is no presumption in the law that once a

disability has been established, a claimant will be assumed to

remain disabled for an indefinite period of time.   To the

contrary, a party seeking compensation bears the burden of

proving his disability and the periods of that disability."

Marshall Erdman & Assocs., Inc. v. Loehr, 24 Va. App. 670, 679,

485 S.E.2d 145, 149-50 (1997) (citation omitted).   Here, the

last medical report was dated January 5, 1998, which showed that

he was to have further testing or treatment on January 26, 1998,

six months prior to the hearing before the deputy commissioner.

The commission noted that with the exception of the change in

intensity of Bristow's back pain reported on November 14, 1997,

the medical records reflect that Bristow's condition appeared to

be steadily improving following his return to work.   In light of

the absence of proof of the continuing disability, or further

efforts to market his residual capacity, the commission did not

err in determining that Bristow was not entitled to disability

benefits after January 27, 1998.

     Accordingly, we affirm the commission's decision and award

of benefits.

                                                         Affirmed.


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