                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Kelsey and McClanahan
Argued by teleconference


NORFOLK ADMIRALS AND
 FEDERAL INSURANCE COMPANY
                                                              MEMORANDUM OPINION ∗ BY
v.     Record No. 0050-05-4                                     JUDGE LARRY G. ELDER
                                                                  NOVEMBER 1, 2005
TY A. JONES


             FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 Robert C. Baker, Jr. (Dobbs & Baker, on brief), for appellants.

                 Benjamin T. Boscolo (W. David Falcon, Jr.; Chasen & Boscolo,
                 P.C., on brief), for appellee.


       The Norfolk Admirals (employer) and Federal Insurance Company appeal a decision of

the Workers’ Compensation Commission awarding benefits to Ty A. Jones (claimant).

Employer contends the commission erred in finding that: (1) claimant sustained a compensable

injury by accident arising out of and in the course of employment while voluntarily engaging in a

fight; (2) claimant’s disability was not cumulative; and (3) claimant was justified in failing to

market his residual capacity. For the reasons that follow, we affirm the commission’s decision.

                                                  I.

                                          BACKGROUND

       On appeal from a decision of the commission, “we view the evidence in the light most

favorable to the prevailing party” and grant that party the benefit of all reasonable inferences.

Grayson Sch. Bd. v. Cornett, 39 Va. App. 279, 281, 572 S.E.2d 505, 506 (2002).



       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       So viewed, the record shows that on March 29, 2002, claimant, a right-hand-dominant,

twenty-two-year-old male, was employed by the Norfolk Admirals as a hockey player, playing

as a right-wing power forward. On that date, claimant took the ice and, following his coach’s

instructions, instigated a fight with an aggressive opposing player. As a result of the fight,

claimant was sent to the penalty box, at which time he noticed that his right shoulder was sore

and he could not lift his arm. At the end of the game, claimant went immediately to the team

doctor to report the injury.

       Following the injury, claimant took several days off with the agreement of employer’s

head athletic trainer, Kevin “Stu” Bender. Claimant’s agent recommended that he not participate

in the playoffs because he had been injured and did not yet have a contract for the 2002/2003

hockey season. Despite continuing problems, claimant played in the first round of the playoffs,

but the team lost in that round, and the season ended on April 20, 2002.

       On April 1, 2002, claimant sought treatment from Dr. R. Brick Campbell, an orthopedic

surgeon “who worked with the employer’s hockey team and supervised the employer’s trainer,

[Kevin “Stu”] Bender.” Dr. Campbell recommended physical therapy, but when claimant’s

condition did not improve, Dr. Campbell ordered a right shoulder MRI, which was performed on

April 24, 2002. As a result of the MRI, Dr. Campbell diagnosed lesions of the anterior, inferior,

and posterior labrum.

       On May 16, 2002, Dr. Campbell performed surgery on the claimant’s right shoulder,

which included the insertion of six screws. A copy of the operative report was provided to

employer’s head trainer, Stu Bender. Following the surgery, Dr. Campbell told claimant not to

“bring” his shoulder “[past] probably 60 degrees up,” to wear a sling for six months in order to

let the shoulder heal, and to “take six months off” from work “and then see how it feels.”

Claimant wore the sling for “almost the full six months,” taking it off only when he went to bed.

                                                -2-
Dr. Campbell also prescribed an intensive “rehab protocol” and predicted claimant would be able

to return to hockey on November 15, 2002.

       By early June 2002, claimant returned home to Spokane, Washington. There, he came

under the care of Physical Therapist Matthew Gores and Orthopedic Physician Russell

VanderWilde, who helped him implement Dr. Campbell’s rehab protocol. Gores agreed with

Dr. Campbell’s prognosis, opining that claimant’s “[o]verall rehabilitation potential is excellent,”

and he recommended “skilled rehabilitative therapy in conjunction with a home exercise

program,” which was to last “until [claimant] reports for training camp.” Claimant testified that

he was “involved in rehab . . . five days a week . . . [so he] couldn’t work during [the] period of

time” through November 15, 2002. He admitted, however, that during the summer months, he

was able to take a trip to Alaska, where he fished for “minor little fish” like “trout” and

aggravated his shoulder injury while pushing himself out of a rental car. In mid-July, he reported

doing “some putting and chipping,” saying that “it went pretty good,” but when he asked

Dr. VanderWilde on July 19, 2002, if he could engage in such activities, Dr. VanderWilde

“would not clear him for [such activities]” at that time. The record is silent as to whether

claimant engaged in golf-related activities again prior to mid-September, when Dr. VanderWilde

opined he could play golf.

       Both Physical Therapist Gores and Dr. VanderWilde routinely provided copies of their

office and progress notes to employer’s head trainer, Stu Bender. Claimant and Gores remained

in contact with Bender, who told claimant “to continue to take it really easy.” Bender also gave

advice on claimant’s rehabilitation and the types of rehabilitation and leisure activities in which

he thought claimant should or should not engage. Claimant’s rehabilitation with Gores included

range of motion work, strength training, and aerobic conditioning. When Dr. VanderWilde

opined on August 30, 2002, that claimant could “play golf” and “start some stick work” “in a

                                                -3-
non-contact situation” in mid-September, Bender “told [claimant] not to do these things yet.” On

September 27, 2002, Dr. VanderWilde noted that claimant “look[ed] good for return,” but that he

needed to “continue to work on his strengthening and then follow-up with Dr. Campbell prior to

returning to competition in mid-November.” On October 24, 2002, Physical Therapist Gores

noted that he and claimant planned to review claimant’s “workout book from the Blackhawks,”

and on November 4, 2002, claimant noted he had been trying to get in touch with Stu Bender and

that he “need[ed] to be ready to fight” when he returned to the Admirals because “[t]hey have no

toughness on the team.”

        Claimant continued to participate in rehabilitation through at least November 15, 2002.

Dr. VanderWilde opined claimant was “totally disabled from professional hockey through that

date,” but said he still “anticipate[d]” that claimant “will return to his professional hockey career

without any long-term restrictions.” For reasons not apparent from the record, claimant did not

return to play for the Norfolk Admirals and began to play for the Anchorage Aces in February

2003.

        On the issue of causation, Dr. Campbell opined that the fight claimant participated in on

March 29, 2002, materially aggravated a previous injury to the claimant’s right shoulder.

Dr. VanderWilde also opined that the treatment required for claimant’s shoulder in 2002 was

caused by his March 29, 2002 injury. Claimant acknowledged that he had pre-existing right

shoulder problems but said that he had not suffered from any such problems during the three

months prior to March 29, 2002 and that the type of pain he experienced after the fight on that

date was more severe than any shoulder pain he had experienced previously.

        Claimant sought medical and disability benefits, including temporary total disability for

the period from April 20 through November 15, 2002. Following a hearing on June 1, 2004, the

deputy awarded the requested benefits. He concluded claimant suffered an injury by accident

                                                -4-
arising out of and in the course of his employment and that claimant was entitled to temporary

total disability compensation through November 15, 2002, when claimant was released back to

work as a hockey player.

       On employer’s request for review, the commission agreed with the deputy’s conclusion

that claimant’s altercation during the March 29, 2002 hockey game arose out of and in the course

of his employment and constituted an “accident” as contemplated by the Act. It also held

credible evidence supported the finding that claimant in fact suffered an injury that “materially

aggravated his pre-existing shoulder condition.” Finally, on the issue of marketing, the

commission held as follows:

               [W]e conclude that the claimant was not required to market any
               residual physical capacity that he may have had from May 16 to
               November 15, 2002, because of his profession as a hockey player
               and his reasonable belief that he would be able to return to that
               profession following his surgery. The record shows that claimant
               engaged in a strenuous rehabilitation program during the months
               following his surgery in an effort to return to his pre-injury job as a
               hockey player. The record also reflects that the claimant
               participated in this program at the direction of the employer’s
               doctor, Dr. Campbell. Thus, given the unique circumstances of
               this case, we conclude that the claimant’s need to concentrate on
               strengthening himself during the months following his shoulder
               surgery and preceding the next hockey season affected his capacity
               to find alternative employment from May 16 through November
               15, 2002, and relieved him of any obligation of seeking alternative
               employment during this period as a condition of receiving
               disability compensation.

       The commission affirmed the deputy’s award of benefits, and this appeal followed.




                                                -5-
                                                  II.

                                            ANALYSIS

             A. Injury by Accident Arising Out of and in the Course of Employment

       “In order to establish entitlement to compensation benefits, the claimant must prove, by a

preponderance of the evidence, [(1)] an injury by accident which arose [(2)] out of and [(3)] in

the course of his employment.” Classic Floors, Inc. v. Guy, 9 Va. App. 90, 95, 383 S.E.2d 761,

764 (1989); see also Code § 65.2-101. Employer argues that because claimant was the aggressor

in voluntary combat, the injury did not arise out of his employment. Claimant argues that he

suffered an accidental injury as a result of a fight he engaged in at the instruction of his coach.

He claims that fighting is a part of the history and game of hockey and that it constitutes a hazard

to which he was exposed to a degree beyond that of the public at large.

                                       1. Injury by Accident

       Employer argues that intentional actions by any design are not accidental and, thus, are

not compensable. The Workers’ Compensation Act does not define “injury by accident.” That

phrase, however, has been defined by judicial interpretation. In Southern Express v. Green, 257

Va. 181, 509 S.E.2d 836 (1999), the Supreme Court stated that,

               to establish an “injury by accident” a claimant must prove (1) that
               the injury appeared suddenly at a particular time and place and
               upon a particular occasion, (2) that it was caused by an identifiable
               incident or sudden participating event, and (3) that it resulted in an
               obvious mechanical or structural change in the human body.

Id. at 187, 509 S.E.2d at 839. Here, the commission found evidence to support these factors, and

we agree.

       The particular time, place, and occasion of claimant’s injuries was at the conclusion of a

fight during the hockey game in which claimant played on March 29, 2002. The identifiable or

precipitating event was the fight, which claimant instigated with a player on the opposing team

                                                 -6-
on the instructions of his coach. Finally, claimant’s doctor stated that the fight “materially

aggravated” claimant’s right shoulder injury, causing lesions of the anterior, inferior, and

posterior labrum of the right shoulder, which indicates a mechanical or structural change that

resulted in his injury. Thus, credible evidence supports the commission’s finding that claimant

sustained an injury by accident within the meaning of the Act rather than an impairment resulting

from cumulative trauma.

                                  2. Arising out of Employment

       The Supreme Court defined “arising out of employment” in Combs v. Virginia Electric &

Power Co., 259 Va. 503, 525 S.E.2d 278 (2000). “In Virginia we apply an ‘actual risk test,’

meaning that the employment must expose the employee to the particular danger causing the

injury, notwithstanding the public’s exposure generally to similar risks.” Id. at 510, 525 S.E.2d

at 282. In cases of assault, the motive of the actor committing the assault is also examined. See

Hopson v. Hungerford Coal Co., 187 Va. 299, 307, 46 S.E.2d 392, 396 (1948); Farmers Mfg.

Co. v. Warfel, 144 Va. 98, 101-02, 131 S.E. 240, 241 (1926). “[I]f there is a causal connection

between [the] injury and the conditions of [the claimant’s] employment, then [the] injury arose

out of [that] employment.” Combs, 259 Va. at 509, 525 S.E.2d at 282.

       In Pro-Football v. Uhlenhake, 37 Va. App. 407, 558 S.E.2d 571 (2002), aff’d, 265 Va. 1,

574 S.E.2d 288 (2003), this Court affirmed the commission’s decision to award benefits to a

professional football player because the player’s injuries resulted from, or were hastened by, the

conditions of his employment, which exposed him to hazards to a degree beyond that of the

public at large. Pro-Football argued, as employer argues here, that the claimant was seeking to

recover for injuries resulting from voluntary participation in activities. However, the Court

found, as the commission in this case found, that claimant was engaged in an activity that was

required by his employment. Id. at 413, 558 S.E.2d at 574-75.

                                                -7-
       Indeed, in the case at bar, the evidence established that, at the time claimant was injured,

he was performing a task that he was employed to perform. The commission found that fighting

is an integral part of the game of hockey and that claimant’s job on employer’s hockey team was

to be an “enforcer.” This conclusion was supported by the deposition testimony of Lawrence J.

Landon, Executive Director of the Professional Hockey Players’ Association, who stated fighting

is a part of hockey and is not prohibited by the league. He testified that the league rule on

fighting is just a “policing mechanism or control mechanism because [fighting] is allowed.” He

said, “All fighting is part of the game.” He also testified that, in fighting, claimant was doing

what he was paid to do; that injury due to fighting is a foreseeable risk for any player in any

game; and that games without fighting are the exception rather than the rule. The evidence also

included claimant’s testimony that his coach told him to “go get” a particular player on the

opposing side, which claimant understood to mean, “go fight him.” Although employer argues

that claimant’s fighting constituted willful misconduct, employer failed to rebut the evidence that

fighting was a part of claimant’s employment. 1

       Employer argues that the commission engaged in overreaching and improperly took

judicial notice in finding that fighting is a part of the game of hockey. We disagree. No judicial

notice was taken. The commission considered the ample evidence before it on the issue of



       1
          Code § 65.2-306 provides that no compensation shall be awarded to a claimant for an
injury caused by: “1. The employee’s willful misconduct or . . . 2. The employee’s attempt to
injure another . . . .” Commission Rule 1.10 requires that an employer intending to rely upon a
willful misconduct defense pursuant to Code § 65.2-306 shall notify the employee and the
commission no later than 15 days prior to the hearing and provide “a statement of the particular
act relied upon as showing willful misconduct.” This is an affirmative defense, imposing upon
the employer the burden of proving that claimant’s conduct, which caused his injury, was in
willful disregard of a reasonable rule established by employer. Code § 65.2-306(B); see also
Brockway v. Easter, 20 Va. App. 268, 271, 456 S.E.2d 159, 161 (1995). Although employer
contends that claimant was engaged in willful misconduct, it did not raise or rely on Code
§ 65.2-306 and failed to rebut the evidence that claimant was engaged in an activity required by
his employment when he was injured.
                                                -8-
fighting in hockey. The evidence supports the commission’s decision that claimant’s injury can

fairly be traced to his employment as a contributing proximate cause. “[W]hether an employee is

guilty of willful misconduct and whether such misconduct is a proximate cause of the

employee’s accident are issues of fact.” Brockway v. Easter, 20 Va. App. 268, 272, 456 S.E.2d

159, 161 (1995). Although claimant conceded that fighting is voluntary and that he instigated

the fight, the fight was not a personal undertaking but instead was directed against the other

player as part of claimant’s employment relationship and in furtherance of employer’s business.

Compare Richmond Newspapers, Inc. v. Hazelwood, 249 Va. 369, 374-75, 457 S.E.2d 56, 59

(1995) (holding that “goosing” of fellow newspaper employee constituted an assault that “was of

a personal nature and not directed against the recipients as employees or in furtherance of the

employer’s business” and that resulting injury thus did not arise out of employment).

                                 3. In the Course of Employment

       The phrase, “in the course of employment,” means that the injury took place “‘within the

period of employment, at a place where the employee may reasonably be, and while he is

reasonably fulfilling duties of his employment or engaged in doing something incidental

thereto.’” Combs, 259 Va. at 511, 525 S.E.2d at 283 (quoting Bradshaw v. Aronovitch, 170 Va.

329, 335, 196 S.E. 684, 686 (1938)). Claimant’s injury occurred while he was employed as a

hockey player, during a hockey game, and while he followed his coach’s orders. Thus, ample

evidence supported the commission’s finding that claimant was injured in the course of his

employment.

           B. Cumulative Trauma versus Injury Aggravating Pre-Existing Condition

       Employer argues that claimant’s injury was a result of cumulative trauma and, therefore,

is not compensable. However, “[w]hen an injury sustained in an . . . accident accelerates or

aggravates a pre-existing condition, death, or disability resulting therefrom is compensable under

                                               -9-
the Workers’ Compensation Act.” Ohio Valley Constr. Co v. Jackson, 230 Va. 56, 58, 334

S.E.2d 554, 555 (1985); see also Lilly v. Shenandoah’s Pride Dairy, 218 Va. 481, 488, 237

S.E.2d 786, 790 (1977). The commission relied on the diagnosis of Dr. Campbell, who stated

that the injury claimant sustained in the March 29, 2002 fight “materially aggravated” a previous

injury. It also relied on the statement of Dr. VanderWilde that claimant’s need for treatment was

necessitated by his March 29, 2002 shoulder injury. Finally, it relied upon claimant’s testimony

that, although he had a pre-existing shoulder injury, he had not experienced any problems with

his shoulder during the three months prior to March 29, 2002 and that the pain he suffered after

the March 29, 2002 fight was more severe than any of the pain he had experienced previously.

Therefore, the record contains credible evidence to support the commission’s finding that

claimant suffered an injury to his right shoulder during the fight on March 29, 2002 that

“materially aggravated his pre-existing shoulder condition.”

                                   C. Residual Work Capacity

       Employer also argues that the commission erred in finding claimant was not required to

market his residual work capacity. An employee claiming entitlement to temporary total

disability benefits must take reasonable measures to market any residual work capacity he may

have. Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987).

“[I]t is not required that a workers’ compensation claimant who suffers partial disability be

informed by his physician that he may undertake restricted work in order for him to be obligated

to make reasonable efforts to market his residual skills.” Ridenhour v. City of Newport News,

12 Va. App. 415, 416, 404 S.E.2d 89, 89 (1991).

       To determine the reasonableness of an employee’s efforts to market, the commission

should consider

               (1) the nature and extent of employee’s disability; (2) the
               employee’s training, age, experience, and education; (3) the nature
                                               - 10 -
                 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.

Nat’l Linen Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d 31, 34 (1989). “What is

reasonable in one area, or in one industry, or even in one season might not be reasonable in

another. . . . [W]hat is reasonable in a given case will depend upon all of the facts and

surrounding circumstances.” Bateman, 4 Va. App. at 467, 359 S.E.2d at 102. Ultimately, “[t]he

commission . . . determines which of these or other factors are more or less significant with

regard to a particular case.” McGuinn, 8 Va. App. at 272-73, 380 S.E.2d at 34-35. We treat the

commission’s factual determinations as binding if supported by credible evidence. Code

§ 65.2-706(A); Wall Street Deli v. O’Brien, 32 Va. App. 217, 220-21, 527 S.E.2d 451, 453

(2000).

          In this case, the commission concluded that claimant was not required to market his

residual physical capacity during the benefit period. The commission found that although

claimant clearly was capable of “rather significant physical activity” in the months following his

surgery, employer’s physician, Dr. Campbell, prescribed an intensive “rehab protocol” designed

to return claimant to his pre-injury position as a professional hockey player within six months of

his May 16, 2002 shoulder surgery. Physical Therapist Gores and Orthopedic Physician

VanderWilde, who oversaw claimant’s rehabilitation when he returned to his home in Spokane,

Washington, in late May or early June 2002, both also opined that claimant’s prognosis for

recovery was “excellent” and that he likely would be able to return to his position as a

professional hockey player within the time frame given by Dr. Campbell. Compare Bateman, 4

Va. App. at 465-66, 359 S.E.2d at 101-02 (holding employee had duty to market residual

capacity by seeking new employment where he had received permanent partial impairment rating

                                                - 11 -
to injured leg and physician expressly advised him to seek a new, preferably sedentary,

position). 2 Although claimant experienced some minor setbacks, he progressed toward

Dr. Campbell’s rehabilitative goal in a reasonably timely fashion. During this time, employer’s

head trainer, Stu Bender, maintained contact with claimant and monitored claimant’s

participation in Dr. Campbell’s rehab protocol. Bender told claimant “to continue to take it

really easy” and gave advice on the types of rehabilitation and leisure activities in which he

thought claimant should or should not engage. Finally, claimant testified that he participated in

Dr. Campbell’s rehabilitation protocol five days per week and that the level of his participation

prevented him from seeking or performing other employment during the period at issue. 3

       Thus, evidence of claimant’s prognosis for a full recovery prior to the next hockey

season, combined with evidence of the intensity of his “rehab protocol” and the level of

involvement of employer’s agents in overseeing the rehabilitative process, constitute credible

evidence supporting the commission’s finding that claimant had no duty to market his residual

capacity under the unique facts of this case.




       2
          The dissent cites Hall v. C.R. Hudgins Plating, Inc., 70 O.I.C. 237, 239 (1991), for the
proposition that a “claimant’s anticipation of returning to employment is not sufficient
justification for failing to market remaining work capacity.” Hall is factually distinguishable in
that Hall returned to work in a light-duty position for her pre-injury employer, lost her job in an
economic layoff, and then failed to market her residual capacity while her doctor continued to
recommend light-duty work.
       3
          The dissent cites Knott v. Hampton Roads Mariners, L.L.C., 2005 VA Wrk. Comp.
LEXIS 242 (2005), as a case in which the commission “den[ied] benefits to a professional soccer
player who did not adequately market his residual capacity.” Knott is factually distinguishable
in that, although the claimant underwent physical therapy, no evidence indicated the claimant’s
physicians prescribed intensive, time-consuming rehabilitation that prevented him from working
or that his employer anticipated Knott would return to his pre-injury employment for employer.
Further, the evidence indicated that Knott testified he was a college graduate with a degree in
physics and that he actually looked for work, although he kept no records of the potential
employers he contacted.
                                               - 12 -
                                               III.

       Because credible evidence supports the commission’s decision that claimant sustained a

compensable injury by accident arising out of and in the course of employment, that his

disability was not cumulative, and that he had no duty to market his residual capacity under the

unique facts of this case, we affirm the commission’s award.

                                                                                        Affirmed.




                                              - 13 -
McClanahan J., concurring, in part, and dissenting, in part.

       I concur in Parts II A and B of the majority opinion. However, I would reverse and

vacate the commission’s award of temporary total benefits from May 16 to November 15, 2002,

because there is no credible evidence that the claimant made any effort to market his residual

work capacity.

       A claimant seeking temporary total disability benefits, while unable to perform the job at

which he was injured, may still possess an ability to perform some kind of employment,

rendering him only partially incapacitated. In its decision, the commission concluded “that th[is]

claimant was not completely incapacitated from the time of his surgery on May 16, 2002, until

November 15, 2002.” It found that

                 the evidence clearly shows that the claimant was capable of
                 performing rather significant physical activity during the months
                 following his surgery – as reflected by his ability to go fishing in
                 August of 2002, the type of physical activity he performed when
                 engaging in Dr. Campbell’s “rehab protocol,” and
                 Dr. VanderWilde’s opinion that the claimant would be capable of
                 shooting on the ice by mid-September 2002.

Neither party contested the commission’s finding that claimant was partially incapacitated.

       In order to establish his entitlement to benefits, a partially incapacitated claimant must

prove that he made a reasonable effort to market his residual work capacity. See Washington

Metropolitan Area Transit Authority v. Harrison, 228 Va. 598, 601, 324 S.E.2d 654, 656 (1985);

Island Creek Coal Co. v. Fletcher, 201 Va. 645, 648, 112 S.E.2d 833, 835 (1960); see also Great

Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987) (An employee

claiming entitlement to temporary total benefits must take reasonable measures to secure suitable

work.). 4 The commission also acknowledged this legal principle applied in this case.


       4
         Generally, there are only three exceptions to the duty to market, and none of these
exceptions apply in this case. First, if the claimant is totally disabled, he does not have any
residual capacity to market. See e.g., Georgia Pac. Corp. v. Dancy, 17 Va. App. 128, 134, 435
                                                 - 14 -
          In spite of finding that the claimant was only partially incapacitated and was “capable of

performing rather significant physical activity,” the commission then inconsistently concluded

“that the claimant was not required to market any residual capacity that he may have had from

May 16 to November 15, 2002, because of his profession as a hockey player and his reasonable

belief that he would be able to return to that profession following his surgery.” I am not aware of

any exception in the law that a person in professional sports is not required to market, see Knott

v. Hampton Roads Mariners, L.L.C., 2005 VA Wrk. Comp. LEXIS 242 (2005) (denying benefits

to a professional soccer player who did not adequately market his residual work capacity), even

if he reasonably believes that he may be able to return to his profession, see Hall v. C.R. Hudgins

Plating, Inc., 70 O.I.C. 237, 239 (1991) (holding that claimant’s anticipation of returning to

employment is not sufficient justification for failing to market remaining capacity to work). As a

matter of law, a claimant who is partially incapacitated has the burden of proving that he made a

reasonable effort to market his residual work capacity. Harrison, 228 Va. at 601, 324 S.E.2d at

655.

          Once it is determined that the claimant is required to market, then the commission must

determine whether the steps the claimant took to find alternative employment were reasonable,

using the factors set forth in Nat’l Linen Serv. v. McGuinn, 8 Va. App. 267, 380 S.E.2d 31

(1989).

                 [I]n defining what would be considered a reasonable effort at
                 obtaining employment . . . the employee must present “some
                 evidence that he had engaged in a good faith effort to obtain work
                 within the tolerance of his physical condition” and has failed to

S.E.2d 898, 901 (1993). Second, if the claimant is under a de facto award, where the employer is
paying the claimant and, thus, is not contesting the compensability of the claim, the claimant is
under no obligation to market. See Nat’l Linen Serv. v. McGuinn, 5 Va. App. 265, 272, 362
S.E.2d 187, 190 (1987) (en banc). Or, third, if the claimant is seeking benefits for such a brief
period of time (i.e., days or weeks, not months), that it makes no sense to require him to market,
he is not required to do so. Holly Farms Foods, Inc. v. Carter, 15 Va. App. 29, 42, 422 S.E.2d
165, 172 (1992).
                                               - 15 -
               find a job, either due to his injury or because no such work was
               available in the community.

Id. at 271, 380 S.E.2d at 33-34 (quoting Dunkin Donuts of Am., Inc. v. Watson, 366 A.2d 1121

(Me. 1976)). In this case, it is clear from the record, and uncontested, that the claimant did not

make any effort to obtain work within the tolerance of his physical condition. “Inasmuch as the

record establishes an absence of effort on his part, it fails to support the commission’s finding

that his efforts were reasonable.” Wall St. Deli, Inc. v. O’Brien, 32 Va. App. 217, 221, 527

S.E.2d 451, 453 (2000); see also Bateman, 4 Va. App. at 468, 359 S.E.2d at 103 (reversing an

award where “[n]o effort was made to secure any sedentary job or position for which [claimant]

was equipped”). Instead, the commission concluded that:

               the claimant’s need to concentrate on strengthening himself during
               the months following his shoulder surgery and preceding the next
               hockey season affected his capacity to find alternative employment
               from May 16 through November 15, 2002, and relieved him of any
               obligation of seeking alternative employment during this period as
               a condition of receiving disability compensation.

       Such a conclusion clearly rests on factor (6) of the McGuinn factors: “(6) any other

matter affecting employee’s capacity to find suitable employment.” McGuinn, 8 Va. App. at

272, 380 S.E.2d at 34. The McGuinn factors have historically been used to determine

reasonableness of a claimant’s efforts, but in this case of “unique circumstances,” they are being

used to create a legal exception to the duty to market. Such an application of the factors negates

the duty to market requirement and creates an exception that swallows the rule. Cf. Anzualda v.

Commonwealth, 44 Va. App. 764, 774 n.3, 607 S.E.2d 749, 754 n.3 (2005); Jenkins v. Ford

Motor Co., 27 Va. App. 281, 293, 498 S.E.2d 445, 451 (1998). Furthermore, since most injuries

will require some rehabilitation, it is hard to imagine a set of facts that could not somehow fit

into the exception; as long as a claimant says he is spending a significant portion of his time in

rehabilitation, he is now excused from any duty to market.

                                               - 16 -
       Moreover, this case presents no “unique circumstances” that justify an exception to

claimant’s legal duty to market. The fact that “claimant engaged in a strenuous rehabilitation

program during the months following his surgery in an effort to return to his pre-injury job as a

hockey player,” is not enough as a matter of law. Rehabilitation is often strenuous, but it does

not obviate a claimant’s duty to market. As the commission has previously explained,

“[s]pending several hours in physical therapy each week does not relieve a claimant of his

burden to market his residual capacity.” Baker v. Virginia Forklift, Inc., 2003 VA Wrk. Comp.

LEXIS 1340 (2003).

       While this Court will not disturb the commission’s factual findings if based on credible

evidence, “[w]hether credible evidence exists to support a factual finding is a question of law

which is properly reviewable on appeal.” Hercules, Inc. v. Gunther, 13 Va. App. 357, 361, 412

S.E.2d 185, 187 (1991). In this case, the medical evidence shows that claimant was required to

attend rehabilitative therapy variously from two to three times a week, with treatment lasting 13

to 50 minutes per day (consisting of 39 visits) over a seven-month period, in conjunction with a

daily home exercise program. 5 There is absolutely no evidence regarding how much time each

day he spent exercising at home, as prescribed. Cf. Dennis v. Inglett & Stubbs, Inc., 2001 VA

Wrk. Comp. LEXIS 4280 (2001) (holding that a claimant did not sufficiently market his residual

capacity when evidence showed that claimant’s therapy took approximately thirty minutes, three

days a week). All the record shows is claimant’s conclusory response that he was involved in

rehabilitation five days a week and “couldn’t work during that period of time.”

       It was claimant’s burden to prove why he could not work, which he did not do. See

Dennis, 2001 VA Wrk. Comp. LEXIS 4280 (explaining that “claimant offered no



       5
       Of the 39 visits, there were four visits where no rehabilitative treatment was noted. No
documentation for Visit 2 existed in the record.
                                              - 17 -
evidence why he could not arrange physical therapy either prior to or after work hours” and that

his “mere assertion that he could not be employed because of the physical therapy, without

evidence of actually seeking employment, is not sufficient to establish marketing of his

remaining capacity”). There was simply no credible evidence for the commission’s decision;

and, likewise, no factual basis for the majority’s conclusion that “the level of [claimant’s]

participation [in rehabilitation] prevented him from seeking or performing other employment

during the period at issue.” Even under the commission’s own precedent, albeit an extreme

example, if claimant was free to market his residual capacity only one hour a day, he was

obligated to do so, even if it was “highly unlikely [he] could actually find work.” Pilson v. J. D.

Bassett Mfg. Co., VWC 191-18-35 (July 27, 2000) (ruling that under Virginia law, the claimant,

a manufacturing laborer, who was released to work one hour a day with the use of only one hand,

was required to “at least attempt to market [her] residual capacity”).

       The commission’s own precedent belies any conclusion that this case presents “unique

circumstances” negating the legal duty to market. Claimant failed to meet his burden of proving

that he made a reasonable effort to market his remaining work capacity. I would hold that “no

effort” is not sufficient to satisfy the requirement that a claimant make a “reasonable” effort.

Accordingly, I would reverse the decision of the commission on that issue.




                                               - 18 -
