                    COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bray and Fitzpatrick
Argued at Salem, Virginia


WESTMORELAND COAL COMPANY
                                         MEMORANDUM OPINION * BY
v.          Record No. 2159-96-3          JUDGE RICHARD S. BRAY
                                               MAY 6, 1997
LARRY G. KILGORE


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           Michael F. Blair (Penn, Stuart & Eskridge, on
           brief), for appellant.
           Susan D. Oglebay for appellee.



     Westmoreland Coal Company (employer) appeals a decision of

the Virginia Workers' Compensation Commission (commission) which

awarded temporary total disability benefits to Larry G. Kilgore

(claimant) upon a change in condition application.    On appeal,

employer contends that the commission erroneously concluded (1)

that claimant was partially disabled when his employment was

terminated and, thereafter, adequately marketed his "residual job

skills" and (2) that claimant's psychiatric difficulties were

causally related to the industrial injury, resulting in

subsequent temporary total disability.    We affirm the award.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

     Guided by well established principles, we construe the
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
evidence in the light most favorable to the party prevailing

below, claimant in this instance.      See Crisp v. Brown's Tysons

Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916

(1986).   "If there is evidence, or reasonable inferences can be

drawn from the evidence, to support the Commission's findings,

they will not be disturbed on review, even though there is

evidence in the record to support a contrary finding."      Morris v.

Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348

S.E.2d 876, 877 (1986); see Code § 65.2-706.
     A "change in condition" contemplated by the Virginia

Workers' Compensation Act is "'(1) . . . a change in the

employee's capacity to work . . . (2) . . . due to a condition

causally connected with the injury originally compensated.'"

AMP, Inc. v. Ruebush, 10 Va. App. 270, 273-74, 391 S.E.2d 879,

881 (1990) (quoting King's Market v. Porter, 227 Va. 478, 483,

317 S.E. 146, 148 (1984)); see Code § 65.2-101.     The commission's

determination that a claimant's recurrent incapacity to work is

causally related to the original industrial injury is a "finding

of fact . . . [that is] binding on appeal if supported by

credible evidence."   Board of Supervisors v. Martin, 3 Va. App.

139, 142, 348 S.E.2d 540, 541 (1986).
     PHYSICAL DISABILITY AND MARKETING OF RESIDUAL CAPACITY

     An employee working under restrictions attendant to a

compensable injury may have benefits restored upon termination of

such employment, provided the employee thereafter reasonably




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markets his or her residual earning capacity.   See, e.g., Huffman

v. Toney Arey Trucking, 70 O.I.C. 85, 88 (1991); see also

Pleasants v. AT&T Microelectronics, 68 O.I.C. 169 (1989).     In

assessing a reasonable marketing effort, the commission should

consider (1) the nature and extent of employee's disability, (2)

employee's training, age, experience, and education (3) the

nature and extent of employee's job search, (4) employee's intent

in conducting his job search, (5) availability of jobs in the

area suitable for employee considering his disability, and (6)

any other matter affecting the employee's capacity to find

suitable employment.   See National Linen Serv. v. McGuinn, 8 Va.

App. 267, 272, 380 S.E.2d 31, 34 (1989).

     In this instance, the records of claimant's treating

physician, Dr. Gary Williams, document claimant's limited work

capacity dating from and attributable to injury suffered in the

industrial accident of July 22, 1992.   When Dr. Williams released

claimant to work in December, 1994, he stipulated "light to

medium duty as outlined in the most recent job description."       In

correspondence dated January 26, 1996, Dr. Williams reported that

"[claimant's] physical capacities had not improved beyond what

they were prior to his having to come out of work in late 1994."

The evidence discloses that claimant's post-accident work

activities were compatible with his limited abilities until

"layoff" on July 31, 1995.   Thereafter, claimant unsuccessfully

applied for other employment "[o]nce, twice a week," despite



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income from unemployment benefits and a limited local job market.

Such evidence, together with other relevant circumstances,

provides ample support for the commission's finding that claimant

was partially disabled by the original injury and reasonably

pursued employment suitable to his residual capacity between

August 1 and December 16, 1995.
                        PSYCHIATRIC DISABILITY

     A.     Procedural Bar
     Employer argues that claimant failed to properly preserve

for appeal the deputy commissioner's finding that "no medical

opinion . . . causally relate[d]" claimant's psychiatric disorder

to the original accident.    Assuming, without deciding, that

claimant's application for review by the commission did not

specifically identify this issue, it was, nevertheless, subject

to commission review.    Virginia Workers' Compensation Commission

Rule 3.1.    Although "[a] request for review should assign as

error specific findings of fact and conclusions of law," the

commission may, sua sponte, "address any error and correct any
decision . . . if such action is considered . . . necessary for

just determination of the issues."      Rule 3.1 (emphasis added);

see also Brushy Ridge Coal Co. v. Blevins, 6 Va. App. 73, 77-78,

367 S.E.2d 204, 206 (1988) (failure to specify exceptions in

request for review is not jurisdictional; commission may consider

any errors of deputy commissioner).

     B. Merits




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     Emotional harm attendant to physical injury is compensable,

provided it is a "natural consequence that flows from the injury"

and not the result of "'an independent intervening cause

attributable to claimant's own intentional conduct.'"     Morris, 3

Va. App. at 283, 348 S.E.2d at 879 (quoting A. Larson, The Law of

Workmen's Compensation §§ 13, 81.30); see Seneca Falls Greenhouse

& Nursery v. Layton, 9 Va. App. 482, 486, 389 S.E.2d 184, 187

(1990).
     Here, Dr. Williams' records clearly document a psychiatric

component to claimant's injury, described as "situational

depression" resulting from chronic low back pain and frustration

with related physical limitations.     He noted, as early as

December 18, 1992, that claimant was "depressed and very

nervous," "anxious and tense," with "suicidal thoughts" because

of "pain" and "lack of improvement."    On October 31, 1995, he

observed that claimant was "very desponded [sic] about his

condition."   Claimant intentionally overdosed on prescribed pain

and anti-anxiety medication on December 16, 1995, resulting in

hospitalization for approximately a week.

     Following this incident, claimant explained to Dr. Russell

McKnight, a psychiatrist, that he was "overwhelmed with

depress[ion] . . . [and] hopelessness due to pain," "not wanting

to live anymore because of the pain," "living day to day."      Dr.

McKnight's notes reflect severe depression, nervousness and sleep

difficulties associated with claimant's persistent pain.       He



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opined that claimant suffered from "Anxiety Depressive Syndrome

with Insomnia secondary to Chronic [back] Pain," and prescribed

"antidepressant medication," with attendant plans to "work this

up quickly" incidental to further treatment of claimant.      Dr.

Williams agreed, noting claimant's "pain syndrome" and

"[a]ssociated depression, status post suicide gesture/attempt."

(Emphasis added).

     The findings and conclusions of Drs. Williams and McKnight

provide abundant evidence to support the commission's conclusion

that claimant's psychiatric difficulties were attributable to the

original injury.    Such evidence, together with claimant's

declared inability to presently seek new employment, sufficiently

established compensable temporary total disability.    See Dollar

Gen. Store v. Cridlin, 22 Va. App. 171, 176-77, 468 S.E.2d 152,

154-55 (1996).

     Accordingly, the commission correctly concluded that

claimant was entitled to commensurate benefits, and we affirm the

award.
                                          Affirmed.




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