                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Frank, Clements and Senior Judge Overton


FAIRFAX COUNTY SCHOOL BOARD
                                             MEMORANDUM OPINION*
v.   Record No. 0687-03-3                         PER CURIAM
                                                JULY 22, 2003
CYNTHIA H. NOLDEN-THOMPSON


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Michael N. Salveson; Hunton & Williams LLP,
             on briefs), for appellant.

             (Linda D. Slough; Chandler, Franklin &
             O'Bryan, on brief), for appellee.


     Fairfax County School Board (employer) contends the

Workers' Compensation Commission erred in finding that (1)

Cynthia H. Nolden-Thompson (claimant) proved that she made a

reasonable effort to market her residual work capacity after she

moved from Virginia to Hartsel, Colorado; and (2) her

self-imposed one-hour driving restriction was reasonable.       Upon

reviewing the record and the parties' briefs, we conclude that

this appeal is without merit.     Accordingly, we summarily affirm

the commission's decision.     Rule 5A:27.

                  Where an employee's disability is
             partial, to establish his entitlement to
             benefits, he must prove that he made a
             reasonable effort to market his residual
             work capacity. In determining whether a

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
          partially disabled employee has adequately
          marketed his residual work capacity, the
          commission should consider the following
          criteria:

                    (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 effort;

                    (4) the employee's intent in
               conducting his job search;

                    (5) the availability in the
               area of jobs suitable for the
               employee, considering his
               disability; and

                    (6) any other matter
               affecting the employee's ability
               to find suitable employment.

               The determination of whether a
          partially disabled employee has adequately
          marketed his residual work capacity lies
          within the fact finding judgment of the
          commission, and its decision on that
          question, if supported by credible evidence,
          will not be disturbed on appeal. However,
          that decision, to be affirmed, must be based
          upon credible evidence.

Wall Street Deli, Inc. v. O'Brien, 32 Va. App. 217, 220-21, 527

S.E.2d 451, 453 (2000) (citations omitted).

     In affirming the deputy commissioner's decision that

claimant proved "based upon all the surrounding circumstances,

[that her] marketing efforts were reasonable," the commission

found as follows:

               The claimant submitted evidence of her
          attempts to find light-duty employment
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          within one hour of her residence. She
          contacted various businesses and re-checked
          with employers for potential openings. The
          claimant read newspaper ads, completed
          applications, and distributed her resume.
          She participated in childcare classes and
          sought funds to open a daycare center. As
          noted by the Deputy Commissioner, the
          claimant sustained an injury to her right
          upper extremity that resulted in a 25
          percent permanent impairment and ongoing
          light-duty restrictions.

               It is undisputed that the claimant
          currently lives in a more rural area than
          she did pre-injury. While this factor
          should not be the only grounds to support an
          otherwise inadequate marketing effort, her
          employment search shows that she tried to
          find a job within a reasonable geographic
          area around her home. The claimant took
          courses and applied for grants to create an
          employment opportunity. Her job search
          included potential employers within an
          hour's distance of her home. This is not
          unreasonable, especially considering the
          claimant's previous commutes while working
          in Virginia.

     The commission, as fact finder, weighed the evidence in

light of the factors set forth in Wall Street Deli, and

concluded that claimant made reasonable efforts to market her

residual work capacity.   Claimant's testimony, coupled with her

documentary evidence and the medical records, provides credible

evidence to support the commission's factual findings.    Because

credible evidence supports the commission's decision, we will

not disturb it on appeal.

     Employer also argues that the commission erred in

concluding that claimant's job search within one-hour's drive of

                               - 3 -
her home in Hartsel, Colorado constituted a reasonable

geographic area.   We disagree.

     Credible evidence, which established claimant's relocation

to a rural area in Colorado, the nature of her injury and her

physical restrictions, and the twenty-five percent permanent

partial impairment of her right upper extremity, supports the

commission's inference that it was reasonable for her to limit

her job search to an area within one-hour's drive of her home.

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

                                                         Affirmed.




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