                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Huff and Senior Judge Annunziata
UNPUBLISHED


              Argued at Lexington, Virginia


              BRANDON CREASEY
                                                                            MEMORANDUM OPINION BY
              v.     Record No. 0264-14-3                                    JUDGE WILLIAM G. PETTY
                                                                                NOVEMBER 18, 2014
              GP BIG ISLAND, LLC AND
               INDEMNITY INSURANCE COMPANY
               OF NORTH AMERICA


                            FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                               James B. Feinman (Andrew D. Finnicum; James B. Feinman &
                               Associates, on brief), for appellant.

                               S. Vernon Priddy III (Michael J. Goff, Jr.; Two Rivers Law Group,
                               P.C., on brief), for appellees.


                     Brandon Creasey appeals an order of the Workers’ Compensation Commission

              dismissing his claim for permanent partial disability benefits and denying his claim for

              temporary total disability benefits for the periods of February 24, 2012 through May 8, 2012 and

              May 31, 2012 through August 15, 2012. On appeal, Creasey argues that the dismissal was in

              violation of well-established precedent and practice because the claim was not continued until he

              reached maximum medical improvement. He also argues that the commission erred in arbitrarily

              disregarding its own marketing guidelines and finding Creasey failed to reasonably market his

              residual work capacity. For the reasons set forth below, we affirm the commission.




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

       Because the parties are fully conversant with the record in this case and this

memorandum opinion carries no precedential value, we recite below only those facts and

incidents of the proceedings as are necessary to the parties’ understanding of the disposition of

this appeal. On appeal, “[w]e view the evidence in the light most favorable to the prevailing

party below, and ‘[t]he fact that contrary evidence may be found in the record is of no

consequence if credible evidence supports the commission’s finding.’” Va. Polytechnic Inst. v.

Posada, 47 Va. App. 150, 158, 622 S.E.2d 762, 766 (2005) (second alteration in original)

(quoting Creedle Sales Co. v. Edmonds, 24 Va. App. 24, 26, 480 S.E.2d 123, 124 (1997)).

       On March 19, 2012 and June 11, 2012 Creasey filed a claim for benefits, seeking lifetime

medical benefits, temporary total disability benefits from February 24, 2012 to May 8, 2012 and

beginning June 2, 2012 and continuing, and permanent partial disability. Creasey alleged that he

injured his right knee, back, and right hip by accident on February 24, 2012 while on the job

working for GP Big Island, LLC. At a hearing before a deputy commissioner, the following

exchange occurred between Creasey’s attorney and the deputy commissioner regarding

Creasey’s permanent partial disability claim:

               DEPUTY COMMISSIONER: Do you wish to reserve the PPD
               claim?

               MR. FEINMAN: Well, no, I think that---

               DEPUTY COMMISSIIONER: Are you ready for that?

               MR. FEINMAN: ---I think we’ve submitted evidence on that. It’s
               a 15% permanent partial disability of the leg.

As a result of this exchange, the deputy commissioner considered Creasey’s claim for permanent

partial disability. Creasey presented medical evidence supporting his claim for temporary total

disability; however, the only evidence of permanent disability was a medical note from a
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physician’s assistant stating, “PPD Rating 15% right leg status post arthroscopy with persistent

pain and sciatica.”

       Creasey then introduced evidence of a marketing list showing that he had contacted

forty-six employers between June 14, 2012 and August 6, 2012. He testified that he received

one phone call from a potential employer. He did not register with the Virginia Employment

Commission.

       In an opinion dated May 2, 2013, the deputy commissioner found that the accident arose

out of Creasey’s employment, that Creasey suffered an injury to his right knee, and that he was

released to and capable of either sedentary or light-duty work during the period for which

temporary total disability benefits were claimed.1 She dismissed the claims of injury relating to

Creasey’s back and right hip. She further held that Creasey failed to adequately market his

residual work capacity from February 24, 2012 through May 8, 2012 and from May 31, 2012

through August 15, 2012; therefore, his claim for temporary total disability benefits for those

times was denied. He was awarded temporary total disability benefits for the time from August

16, 2012 through October 29, 2012.

       As to the claim for permanent partial disability, the deputy commissioner noted that “we

are not convinced that the claimant has reached maximum medical improvement.” She then

went on to deny the permanent partial disability claim because “there [was] no evidence that

[Creasey’s doctor] was aware of and consented to the 15% rating.” She was “not persuaded by

the evidence that the 15% rating relate[d] only to the claimant’s compensable knee injury”



       1
       We note here that GP Big Island filed a separate appeal to this Court challenging the
commission’s holding that the injury to Creasey’s knee arose out of a risk of his employment. In
a memorandum opinion decided this day, November 18, 2014, we affirmed the holding of the
commission. See GP Big Island, LLC v. Creasey, No. 0273-14-3 (Va. Ct. App. Nov. 18, 2014).

                                               -3-
because Creasey’s doctor “was treating the claimant for low back, right SI joint, and right gluteal

pain, none of which [were] causally related to the work accident.”

       On May 9, 2013, Creasey requested review of the deputy commissioner’s denial and

dismissal of his permanent partial disability claim and her finding that he had not adequately

marketed his residual work capacity. On review, the full commission affirmed the deputy

commissioner’s decision in every respect.

                                                II.

                                 A. Permanent Partial Disability

       On appeal, Creasey argues that the commission erred in dismissing his claim for

permanent partial disability instead of moving the claim to the inactive docket and allowing the

claim to remain filed with the commission until further evidence was submitted to establish the

claim. We disagree.

       Code § 65.2-503 provides the statutory authority for awarding permanent partial

disability benefits in Virginia. Before benefits under this section are awardable, “it must appear

both that the partial incapacity is permanent and that the injury has reached maximum medical

improvement.” Cnty. of Spotsylvania v. Hart, 218 Va. 565, 568, 238 S.E.2d 813, 815 (1977).

Further, the permanent partial disability claimant has “the burden of establishing by a

preponderance of the evidence the existence of a disability which was the consequence of the

injury by accident.” Hungerford Mech. Corp. v. Hobson, 11 Va. App. 675, 678, 401 S.E.2d 213,

215 (1991). In determining whether benefits for partial loss are to be awarded, “the commission

must rate ‘the percentage of incapacity suffered by the employee’ based on the evidence

presented.” Id. at 677, 401 S.E.2d at 215 (quoting Hart, 218 Va. at 568, 238 S.E.2d at 815).

“Medical evidence is not necessarily conclusive, but is subject to the commission’s consideration



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and weighing.” Id. Therefore, “a medical rating of the employee’s disability is evidence which

an employee offers in order to meet the burden of proof.” Id. at 677-78, 401 S.E.2d at 215.

       The commission’s decisions regarding permanent impairment and maximum medical

improvement are factual findings that are conclusive and binding on this Court when they are

based on credible evidence. See Code § 65.2-706; McCaskey v. Patrick Henry Hosp., 225 Va.

413, 415, 304 S.E.2d 1, 2 (1983). In conducting our review, “we are required to construe the

evidence in the light most favorable to the party who prevailed before the commission.” Gunst

v. Childress, 29 Va. App. 701, 707, 514 S.E.2d 383, 386 (1999) (citing Crisp v. Brown’s Tysons

Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986)).

       Here, Creasey chose to have his permanent partial disability claim litigated and then

failed to meet his burden of proof to establish entitlement to permanent partial disability benefits.

The deputy commissioner refused to accept the note from the physician’s assistant as evidence of

an impairment rating. She also concluded that the rating did not relate to the compensable knee

injury. In her opinion she noted that “we decline to accept the impairment rating because it was

given by a physician’s assistant and there is no evidence that [Creasey’s doctor] was aware of

and consented to the 15% rating.” She also added, “[W]e are not persuaded by the evidence that

the 15% rating relates only to the claimant’s compensable knee injury.” The commission

affirmed, stating that “we agree with the Deputy Commissioner that the claimant did not meet his

burden of proving permanent partial disability” and “the claimant cannot elect to have the claim

heard and once he loses on the merits ask to preserve the claim.”

       Thus, Creasey “failed to present quantified evidence of the loss of use of his leg[].” Hill

v. Woodford B. Davis Gen. Contractor, 18 Va. App. 652, 653, 447 S.E.2d 237, 237 (1994). And,

as noted above, medical evidence “is subject to the commission’s consideration and weighing.”

Hobson, 11 Va. App. at 677, 401 S.E.2d at 215. Therefore, “‘[b]ecause the evidence in support
                                                -5-
of the claimant’s application fail[ed] to rate the functional loss of use of his leg[], the claimant

failed in his burden of proof to establish entitlement to benefits for permanent partial or total loss

of use of his leg[].’” Hill, 18 Va. App. at 653, 447 S.E.2d at 237 (quoting Cafaro Constr. Co. v.

Strother, 15 Va. App. 656, 662, 426 S.E.2d 489, 493 (1993)). Simply put, because Creasey

failed to establish the existence of a permanent impairment or that the impairment rating he

introduced was related to the compensable injury, there was no need for the commission to

continue the matter until that non-compensable impairment reached maximum medical

improvement.

       Creasey cites Brown v. United Airlines, Inc., 34 Va. App. 273, 540 S.E.2d 521 (2001), to

support the proposition that permanent partial disability claims, if not sufficiently supported,

should be placed on the inactive docket. In Brown, however, the commission had previously

entered an award in the claimant’s favor providing for compensation for permanent partial

disability. Id. at 274, 540 S.E.2d at 521. Several years later, the claimant filed a new claim for

additional permanent partial disability benefits and to establish a disability rating. Id. Following

a hearing, the deputy commissioner held that the claimant had not yet reached maximum medical

improvement, denied the claim, and ordered the case removed from the docket. Id. at 275, 540

S.E.2d at 522. Six months later, the claimant requested that the matter be rescheduled for a

hearing. Id. The commission held that the request was, in effect, a new claim and was barred by

the statute of limitations because it was not filed within three years from the date for which

compensation was last paid. Id. This Court reversed the commission’s decision, concluding that

the deputy commissioner’s decision to dismiss the claim and remove it from the docket was an

interlocutory decision that allowed the commission to retain jurisdiction over the claim and leave

it open for future determination. Id. at 281, 540 S.E.2d at 523.



                                                 -6-
       We made the very narrow holding in Brown that in light of the specific language in the

commission’s initial disposition of the claim, which lacked clear language demonstrating an

intent to dismiss, that initial order was interlocutory and “did not dismiss the claim.” Id. at

277-78, 540 S.E.2d at 523. Significantly, we did not hold that an order denying and dismissing a

claim for failure to prove a permanent partial disability resulting from a compensable injury was

interlocutory in nature.

       Thus, the holding from Brown is not, as Creasey asserts, that the commission must retain

jurisdiction to hear all permanent partial disability claims until the claimant can prove maximum

medical improvement. Instead, Brown stands for the proposition that when there is evidence of a

compensable permanent partial disability and when the commission, in its discretion, decides to

retain jurisdiction of the claim by denying it without dismissing it, that claim may be re-opened

later. That was simply not the situation here. In refusing to accept Creasey’s proof of permanent

impairment, the commission held that his permanent partial disability claim had not been proven

and thus the claim was “DENIED and DISMISSED.” Because the commission’s decision was

credible and supported by the evidence, we will not disturb it on appeal.

                           B. Failure to Reasonably Market Residual Work Capacity

       Creasey further argues that the commission erred in arbitrarily disregarding its own

marketing guidelines and finding Creasey failed to reasonably market his residual work capacity.

With this, we also disagree.

        “A partially incapacitated employee, absent an award from the commission, is not

entitled to temporary total disability benefits unless he has made a reasonable effort to market his

remaining capacity for work.” White v. Redman, 41 Va. App. 287, 292, 584 S.E.2d 462, 464

(2003). “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
                                                -7-
party before the commission . . . .” Nat’l Linen Serv. v. McGuinn, 8 Va. App. 267, 270, 380

S.E.2d 31, 32 (1989). Unless we can say as a matter of law that claimant’s evidence sustained

his burden of proof, the commission’s findings are binding and conclusive upon us. Tomko v.

Michael’s Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). In Ford Motor Co. v.

Favinger, 275 Va. 83, 89-90, 654 S.E.2d 575, 579 (2008) (alterations in original) (citations

omitted), the Supreme Court outlined the framework for analyzing an employee’s efforts, or lack

thereof, to market his residual work capacity:

                       There are no fixed guidelines for determining what
               constitutes a “reasonable effort” by an employee to market residual
               work capacity. Great Atlantic & Pacific Tea Co. v. Bateman, 4
               Va. App. 459, 467, 359 S.E.2d 98, 102 (1987). An employee must
               “exercise reasonable diligence in seeking employment” and the
               reasonableness of an employee’s effort will be determined on a
               case by case basis, taking into account “all of the facts and
               surrounding circumstances.” Id. Some of the criteria, however,
               that should be considered include:

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

               McGuinn, 8 Va. App. at 270, 380 S.E.2d at 32. In sum, an
               employee “must present ‘some evidence that he [has] engaged in a
               good faith effort to obtain work within the tolerance of his physical
               condition’ and has failed to find a job, either due to his injury or
               because no such work was available in the community.”

       Here, it is undisputed that Creasey contacted forty-six potential employers between June

14, 2012 and August 6, 2012. However, in holding that Creasey failed to market his residual

work capacity, the commission noted,



                                                 -8-
               While the claimant testified he looked for work within his
               restrictions, the contacts from his marketing list are not consistent
               with that testimony. It appears he visited businesses randomly and
               applied for jobs. Under these circumstances, we find there was not
               a good faith effort to find a job within his restrictions.

       We cannot say, as a matter of law, Creasey sustained his burden of proof; therefore, the

commission’s findings are binding on us. In accordance with the commission’s position as fact

finder, it found that Creasey’s marketing efforts were not made in a good faith attempt to find

employment within his restrictions. Neither the deputy commissioner nor the full commission

found Creasey’s claims regarding the extent of his efforts credible, nor did they find that he

made a sufficient effort to find jobs suitable for him, considering his disability. Although

Creasey testified that he contacted forty-six employers within his restrictions, the commission

found his job hunt to be purely random and uncalculated. Because it is supported by the

evidence, we will not disturb the commission’s factual finding that Creasey failed to market his

residual work capacity.

                                                III.

       For the foregoing reasons, we affirm the decision of the full commission.

                                                                                         Affirmed.




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