                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Bumgardner and Lemons


BILLY NORTON/NORTON'S MARINA, INC.
AND
SELECTIVE INSURANCE COMPANY OF AMERICA
                                             MEMORANDUM OPINION*
v.   Record No. 0579-99-2                         PER CURIAM
                                                JULY 20, 1999
GEORGE TOMPKINS GILL, JR.


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Cecil H. Creasey, Jr.; Jeffrey W. Saunders;
             Phyllis C. Katz; Sands, Anderson, Marks &
             Miller, on brief), for appellants.

             (Kathryn Spruill Lingle; Brenner, Dohnal,
             Evans & Yoffy, P.C., on brief), for appellee.


     Billy Norton/Norton's Marina, Inc. and its insurer

(hereinafter referred to as "employer") contend that the

Workers' Compensation Commission (commission) erred in (1)

failing to find that George Tompkins Gill, Jr.'s (claimant)

claim for temporary total disability benefits for the period

from April 12, 1997 through May 28, 1997 was barred by the

doctrine of res judicata; (2) finding that claimant adequately

marketed his residual work capacity; (3) refusing to allow

employer to call claimant's wife as a witness at the hearing;

and (4) allowing claimant to testify at the hearing when he did


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
not identify himself as a witness in his answers to

interrogatories.   Upon reviewing the record and the briefs of

the parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the commission’s decision.      See

Rule 5A:27.

                                I.

     Employer did not raise the doctrine of res judicata as a

defense at the hearing before the deputy commissioner.    In

addition, employer did not assert res judicata in its request

for review before the full commission.   Employer mentioned res

judicata for the first time in its written statement on review.

In that written statement, employer did not raise res judicata

as an issue on appeal.   Rather, employer only made a brief

reference to res judicata in the section of the written

statement addressed to the issue of causation.

     Under these circumstances, the commission did not err in

failing to address the applicability of the doctrine of res

judicata as a bar to claimant's claim, and we will not address

it for the first time on appeal.

                                II.

     In order to establish entitlement to benefits, a partially

disabled employee must prove that he has made a reasonable

effort to procure suitable work but has been unable to do so.

See Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464,


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359 S.E.2d 98, 101 (1987).    "What constitutes a reasonable

marketing effort depends upon the facts and circumstances of

each case."   The Greif Companies v. Sipe, 16 Va. App. 709, 715,

434 S.E.2d 314, 318 (1993).   The factors the commission should

consider in deciding whether a claimant has made reasonable good

faith efforts to market his remaining capacity are:

          (1) the nature and extent of employee's
          disability; (2) the employee's training,
          age, experience, and education; (3) the
          nature and extent of 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 employee's capacity
          to find suitable employment.

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

31, 34 (1989) (footnotes omitted).      In reviewing the

commission's findings, "we review the evidence in the light most

favorable to . . . the party prevailing before the commission."

Id. at 270, 380 S.E.2d at 33.    Moreover, factual findings made

by the commission will be upheld on appeal if supported by

credible evidence.   See James v. Capitol Steel Constr. Co., 8

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

     In ruling that claimant proved that he made a good faith

effort to market his residual work capacity, the commission

found as follows:

               The claimant registered with the VEC in
          July and November 1997 and reviewed the
          classified advertisements for job leads. He

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           submitted a list of over 34 employers whom
           he personally contacted in his search for
           work, and he successfully found work after
           three months. The claimant resumed his
           search when Mount could no longer employ
           him, and he has maintained a job since
           January 5, 1998. He graduated from high
           school and has experience in performing
           manual labor. The evidence does not show
           that the claimant's search was unreasonable
           or that he self-limited his job search. As
           stated, Dr. [Steven M.] Fiore limited him to
           light-duty work, and it is reasonable that
           he would seek employment which did not
           involve heavy manual labor or lifting and
           bending, such as carpentry. The claimant
           still suffers back pain, takes medications,
           and does exercises.

     The testimony of claimant and Wayne B. Mount and the

documentary evidence submitted by claimant detailing his job

contacts constitute credible evidence to support the

commission's factual findings, which are binding on appeal.

Based upon those findings, the commission did not err in holding

that claimant proved he adequately marketed his residual

capacity applying the guidelines enumerated in McGuinn.

                               III.

     In ruling that employer was neither "penalized nor

prejudiced" by the commission not allowing employer to call

claimant's wife as a witness to testify regarding a calendar she

kept of the days claimant worked, the commission found as

follows:

           The employer cross-examined the claimant
           about the days worked and amounts earned by
           the claimant, and the Deputy Commissioner

                               - 4 -
             also allowed the post-Hearing deposition of
             the claimant's employer, Mount, regarding
             the same information. Moreover,
             Interrogatory No. 2 requested the date of
             return to work; the name, address, and
             telephone number of the employer; the nature
             of the job; and the weekly income. The
             claimant completely answered these
             questions, and they were consistent with his
             and Mount's testimony. The question did not
             ask for records, and the claimant did not
             attempt to introduce the calendar into
             evidence. The record was fully developed
             regarding the earnings, and it does not
             appear that the calendar would have supplied
             anything more than cumulative information.

     Rule 2.2 of the Rules of the Virginia Workers' Compensation

Commission provides that "[e]xcept for rules which the

Commission promulgates, it is not bound by statutory or common

law rules of pleading or evidence nor by technical rules of

practice."    Based upon this rule and the lack of any evidence of

prejudice to employer, we cannot say as a matter of law that the

commission erred in refusing to permit employer to call

claimant's wife as a witness to testify at the hearing.

                                  IV.

     In ruling that the deputy commissioner did not abuse his

discretion in allowing claimant to testify, the commission found

as follows:

             It is true a Deputy Commissioner, in an
             exercise of his or her discretion, may
             exclude a witness when a party fails to
             answer interrogatories or identify the
             witness in interrogatory answers. However,
             one would assume that a party would
             potentially testify even if he is not

                                 - 5 -
          formally designated as a witness. The
          Hearing was on the claimant's claim, and he
          had the burden of proof. Also, the record
          does not reflect that employer's counsel
          offered any evidence of prejudice.

     In light of Rule 2.2, the fact that claimant bore the

burden of proof, and employer's failure to show any evidence of

genuine surprise or prejudice, the commission did not abuse its

discretion in allowing claimant to testify.

     For these reasons, we affirm the commission's decision.

                                                        Affirmed.




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