                     COURT OF APPEALS OF VIRGINIA


Present:    Chief Judge Fitzpatrick, Judge Bumgardner and
            Senior Judge Hodges


COMMONWEALTH OF VIRGINIA/
 DEPARTMENT OF TRANSPORTATION
                                             MEMORANDUM OPINION*
v.   Record No. 0791-01-1                         PER CURIAM
                                               AUGUST 21, 2001
RUFFIN HENRY SAVEDGE, JR.


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Mark L. Earley, Attorney General; Judith
             Williams Jagdmann, Deputy Attorney General;
             Gregory E. Lucyk, Senior Assistant Attorney
             General; Scott John Fitzgerald, Assistant
             Attorney General, on brief), for appellant.

             (Robert E. Walsh; Rutter, Walsh, Mills &
             Rutter, L.L.P., on brief), for appellee.


     Commonwealth of Virginia/Department of Transportation

(employer) contends that the Workers' Compensation Commission

erred in finding that Ruffin Henry Savedge, Jr. (claimant)

proved that he made a good faith effort to market his residual

work capacity between July 21, 1999 and June 26, 2000.      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.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     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.

Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359

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

effort depends upon the facts and circumstances of each case."

The Grief Companies v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d

314, 318 (1993).   We have discussed factors which the commission

should consider in deciding whether a claimant has made

reasonable good faith efforts to market his remaining capacity:

          (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 view the evidence in the light most

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

Id. at 270, 380 S.E.2d at 33.

     So viewed, the evidence proved that claimant sustained a

compensable injury to his neck and shoulder while working for

employer on March 13, 1991.   Employer accepted the claim as




                                - 2 -
compensable and paid benefits to claimant for various periods of

disability.

     Claimant, a fifty-eight-year-old high school graduate,

worked as a deck hand for employer for thirteen months before

his injury.   Before that, he worked as a welder for fifteen

years.   Since claimant's 1991 injury, employer has not offered

him any vocational rehabilitation services.   Claimant has

permanent restrictions, established by the medical evidence, of

sedentary work, with no lifting over ten pounds.   He sustained a

fifty-percent loss of use of his right arm.

     In May 1999, claimant registered with the Virginia

Employment Commission.   Claimant sought employment leads through

the newspaper, friends, and neighbors.   Claimant provided a job

contact list for the relevant time period, indicating that he

made three job contacts per week.   All of the jobs exceeded

claimant's restrictions, but he testified that he did not know

this fact until he made the contacts and talked with the people

about the jobs.   Claimant testified that he was advised to make

three job contacts per week and, therefore, he limited his

contacts to that number.   He returned to some employers on more

than one occasion to see if they might have an opening within

his restrictions.   The types of jobs claimant sought included

farm worker, construction laborer, grounds man, stocker,

cleaner, gas station attendant, lawn care, cook and maintenance


                               - 3 -
worker.   He applied to hotels, grocery stores, retail stores,

retirement communities, service stations, fast food restaurants,

construction companies, and gas stations.    He looked for jobs in

the Surry, Williamsburg, and Jamestown areas.    Claimant

estimated that he contacted seventy-five percent of the

prospective employers in-person and twenty-five percent by

telephone.    Claimant has not had a driver's license since 1993.

Claimant believed that he would have to pay a fine to reinstate

his license.

     Based upon this record, the commission found as follows:

             [T]he evidence establishes that the claimant
             marketed his residual capacity from July 21,
             1999, through June 26, 2000. In doing so,
             we note that the claimant has, with one
             exception, made three job contacts per week.
             This has resulted in no offers of
             employment. The employer has offered no
             assistance in the claimant's job search.
             While we are troubled that the claimant
             limited his attempts at employment contacts
             to three per week, it is apparent that he
             did so based on being advised that this was
             sufficient. In view of his background,
             severe disability, and the fact that there
             have been no job offers, we do not find this
             fatal to the claimant's case. The claimant
             looked for employment in Surry,
             Williamsburg, and Jamestown, the areas he
             apparently has the most familiarity because
             they are in close proximity to his home and
             pre-injury work. In the absence of any
             evidence that the claimant worked or had any
             connection with the Hopewell or Petersburg
             areas, plus the lack of any evidence
             concerning the proximity of his home to
             these cities, we do not find his failure to
             seek employment there fatal to his case.
             Likewise, it is not unreasonable that the

                                 - 4 -
            claimant returned to employers during a
            one-year period to determine if they may
            have a job available within his
            restrictions.

     The commission's findings are supported by credible

evidence, including the medical records, claimant's testimony,

and his list of job contacts.   As fact finder, the commission

could conclude that claimant's contact with three employers per

week, over an approximately one-year period, was reasonable in

light of claimant's age, level of education, prior work history

of manual labor jobs, and his severe physical limitations.

     As fact finder, the commission was entitled to conclude

that claimant's limit on the number of job contacts per week and

the particular geographical area of his search was not fatal to

his case.   Claimant testified that he was "advised" that he

should make three job contacts per week.   In addition, although

employer asserts that claimant should have looked for work in

the Hopewell and Petersburg areas, no evidence showed how close

these areas were to his home or whether he had any prior

connection to these areas.   The law requires only a reasonable

marketing effort, not the most efficient or best effort.

Moreover, no evidence showed that appellant's failure to attempt

to reinstate his driver's license indicated a lack of good faith

in his efforts to market his residual work capacity.




                                - 5 -
     Because the commission's findings are supported by credible

evidence, we will not disturb them on appeal.   Accordingly, we

affirm the commission's decision.

                                                         Affirmed.




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