                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Bumgardner and Lemons


LANNY LEE MIDKIFF, JR.
                                             MEMORANDUM OPINION*
v.   Record No. 1554-99-1                         PER CURIAM
                                               NOVEMBER 2, 1999
HAMPTON ROADS SANITATION DISTRICT
AND
MANUFACTURERS ALLIANCE INSURANCE COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Benjamin M. Mason; Lexine D. Walker; Mason,
             Cowardin & Mason, on brief), for appellant.

             (Richard E. Garriott, Jr.; Clarke, Dolph,
             Rapaport, Hardy & Hull, P.L.C., on brief),
             for appellees.


     Lanny Lee Midkiff, Jr. (claimant) contends that the

Workers' Compensation Commission (commission) erred in finding

that he was not entitled to an award of temporary partial

disability benefits subsequent to August 25, 1996 on the ground

that he failed to reasonably market his residual work capacity.

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.

     "In determining whether a claimant has made a reasonable

effort to market his remaining work capacity, we view the


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
evidence in the light most favorable to . . . the prevailing

party before the commission."       National Linen Serv. v. McGuinn,

8 Va. App. 267, 270, 380 S.E.2d 31, 32 (1989).        A claimant has

the burden of proving entitlement to benefits and that he made a

reasonable effort to procure suitable work and to market his

remaining work capacity.       See Great Atl. & Pac. Tea Co. v.

Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 100 (1987).        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.   See Tomko v. Michael's Plastering Co., 210

Va. 697, 699, 173 S.E.2d 833, 835 (1970).

     In denying claimant's application for temporary partial

disability benefits, the commission found as follows:

          The claimant's physical work restrictions
          are not severe, and the claimant has a wide
          range of marketable work skills. He
          acknowledged that there were many types of
          jobs which would be within his work
          restrictions. Aside from his attempt to
          start his own business, the claimant has
          made almost no effort to otherwise market
          his residual work capacity.

               The claimant had very little income
          from his self-employment in 1996. In 1997,
          he averaged approximately $127.92 per week.
          In 1998, he earned approximately $151.67 per
          week. Those weekly earnings are below
          minimum wage, and are less than half of his
          pre-injury average weekly wage of $332.14.

           *      *        *        *      *      *        *

          [W]e are not willing to accept the
          claimant's earnings from his self-employment


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          as reflecting his actual wage earning
          capacity. When considering factors such as
          his age, education, skills, work history,
          and minimal restrictions, we find it
          unreasonable that the claimant did not seek
          suitable employment from other employers.

     The commission fully considered the factors set out in

National Linen, 8 Va. App. at 272-73, 380 S.E.2d at 34-35, and

found that claimant did not meet his burden of proving that he

made a reasonable effort to market his remaining work capacity.

The commission's findings are amply supported by the record.

     In light of claimant's minimal physical restrictions and

the undisputed evidence that he failed to pursue numerous job

opportunities available to him, we cannot find as a matter of

law that he made a good faith reasonable effort to market his

residual capacity.

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

                                                        Affirmed.




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