                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia


GRACE ELLEN FALLS
                                       MEMORANDUM OPINION * BY
v.       Record No. 1326-98-3    CHIEF JUDGE JOHANNA L. FITZPATRICK
                                         DECEMBER 22, 1998
VIRGINIA MENNONITE RETIREMENT
 AND CENTURY INDEMNITY COMPANY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
            A. Thomas Lane, Jr., for appellant.

            Douglas A. Seymour (Law Offices of Harold A.
            MacLaughlin, on brief), for appellee.




     In this workers' compensation case, Grace Ellen Falls

(claimant) appeals the commission's decision denying her claim

for temporary partial disability benefits.     Claimant argues that

the commission erred in finding that she did not adequately and

reasonably market her residual work capacity, even though she

accepted part-time light-duty employment offered by Virginia

Mennonite Retirement (employer).      For the following reasons, we

reverse the commission's decision.

                                 I.

     On October 3, 1990, claimant, a nurse assistant, suffered an

injury to her lower back in the scope and course of employment.

Her claim was accepted by employer, and several awards for

compensation benefits and medical benefits have been entered.
     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Disability benefits were terminated in 1995.

     At the time of her injury, claimant's duties included

bathing, dressing and feeding patients, as well as assisting them

to and from their beds.     Most of her job required standing during

an eight-hour shift.

     The medical evidence established that following her

work-related injury, claimant was given a number of work

restrictions.   On November 30, 1995, claimant's treating

physician, Dr. David Klein, limited her to working no more than

fifteen hours per week. 1   On April 27, 1997, Dr. Stephen

Riggleman, a chiropractor, indicated that claimant would have

limitations on "lifting, standing, walking, pushing, [and]

pulling," beginning March 11, 1994.      Dr. Klein subsequently

opined that since February 5, 1993, claimant should be restricted

from lifting no more than 25 pounds and standing no more than two

hours at a time.   At employer's request, Dr. Galen Craun, an

orthopedic surgeon and attending physician at the time of injury,

performed an independent medical evaluation of claimant on July

21, 1997.    He opined that claimant could not return to work

without restrictions and he agreed with those set forth by Dr.

Riggleman.

     1
      Claimant's previous work restrictions, as noted by the
commission, included the following: "On February 5, 1995, [Dr.
Klein] limited her workday to a maximum of eight hours, with no
lifting over 30 pounds. On April 5, 1994, Dr. Klein restricted
the claimant to four hours per day. On June 23, 1994, he limited
her work hours to five hours per day."




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     After her injury, claimant accepted light-duty work offered

by her employer.    She testified that beginning January 1, 1997,

she worked every other weekend, five hours per day.   When she was

originally offered these hours, claimant asked her supervisor,

Cathy Suiter, if more work was available.   Employer stated there

was none.   Thereafter, neither claimant nor employer approached

the other about increasing her hours.   Claimant has not sought

other employment.
     Due to the limited working hours, claimant earned less than

her pre-injury wage and she filed a claim seeking temporary

partial benefits from January 1, 1997 and continuing. 2    The

commission held that claimant could not return to her pre-injury

employment, but that she was not completely disabled.

Accordingly, claimant was required to market her residual

capacity.    In denying benefits, the commission wrote:
            The Deputy Commissioner found, and we agree,
            that the claimant failed to prove that she
            made a reasonable effort to secure suitable
            employment within her physical
            limitations. . . . Sufficient residual
            capacity exists between the biweekly ten
            hours the claimant works and her
            capabilities, and there is a reasonable
            likelihood that, within her community, she
            could have found a job working 15 hours per
            week under her medical restrictions.
            Moreover, evidence that such a position does
            not exist would have aided her claim.
            However, the claimant did not even minimally
            attempt to market herself. There is
     2
      Claimant also sought temporary total disability benefits
for February 21 through February 24, 1997, which was awarded by
the commission. This finding has not been appealed by either
party.



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            absolutely no evidence of her registering
            with the Virginia Employment Commission or
            simply looking in the help-wanted section of
            the newspaper. We cannot find that the
            claimant has made a good faith effort to
            market her residual capacity within the
            tolerance of her physical ability.


                                 II.

     In order to receive benefits under a change-in-condition

application, claimant must prove that she made reasonable efforts

to market her residual wage earning capacity.    See Virginia Int'l
Terminals, Inc. v. Moore, 22 Va. App. 396, 401, 470 S.E.2d 574,

577 (1996).   "What constitutes a reasonable marketing effort

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

Cos. (GENESCO) v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318

(1993).    Where there is no conflict in the evidence, the question

of the sufficiency of the evidence is one of law.    See CLC

Constr., Inc. v. Lopez, 20 Va. App. 258, 267, 456 S.E.2d 155, 159

(1995).

     In National Linen Serv. v. McGuinn, 8 Va. App. 267, 380

S.E.2d 31 (1989), we identified six factors that the commission

must consider in determining whether an employee has reasonably

and adequately marketed her remaining work capacity.   These

include:
            (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 [her] job
            search; (5) the availability of jobs in the
            area suitable for the employee, considering
            [her] disability; and (6) any other matter
            affecting employee's capacity to find


                                - 4 -
          suitable employment.


Id. at 272, 380 S.E.2d at 34 (footnotes omitted).    The commission

must also consider "whether the employee cooperated with the

employer and if the employer availed itself of its opportunity to

assist the claimant in obtaining employment."    Id. at 272 n.5,

380 S.E.2d at 34 n.5.

     Claimant argues that the commission erred in finding that

she did not make a "reasonable effort to secure suitable

employment within her physical limitations."    Relying on our

decision in ARA Servs. v. Swift, 22 Va. App. 202, 468 S.E.2d 682
(1996), she contends that she was not required to further market

her residual capacity because she acted reasonably in accepting

the light-duty employment offered by her pre-injury employer.      We

agree and reverse the commission's finding.

     In ARA Servs., the commission found that the claimant

reasonably and adequately marketed her remaining residual

capacity because she accepted part-time light-duty employment

with her employer.   See id. at 205, 468 S.E.2d at 683.    On

appeal, the employer argued that the claimant was required to

look for full-time employment within her restrictions and that

"mere employment" was insufficient to sustain her burden in

proving that she marketed her residual capacity.    Id. at 207, 468

S.E.2d at 684. Rejecting employer's argument, we held:
          [C]laimant returned to her pre-injury
          employment. When she was unable to perform
          the job because of the lifting involved,
          employer offered her light-duty employment.
          Claimant accepted in good faith the



                                 - 5 -
             light-duty position offered by her pre-injury
             employer, and no evidence in the record shows
             that she was told to seek additional
             employment.


Id. (emphasis added).

     Like the situation in ARA Servs., there was no evidence in

the instant case that claimant was told by employer to seek

additional employment.    Instead, it was undisputed that claimant

could not return to her pre-injury employment and she accepted

the light-duty position offered by her employer, working every

other weekend, five hours per day.       We hold that claimant met her

burden in proving that she reasonably and adequately marketed her

residual capacity by accepting in "good faith" the part-time

light-duty employment offered by her employer.       See id.

     Nevertheless, employer contends that ARA Servs. does not

control the outcome because in that case "there [was] no evidence

of record that the Claimant was working substantially less hours

than those which her treating physician had allowed her to work

in a light-duty capacity."    However, contrary to employer's

argument, the claimant's treating physician in ARA Servs. placed
lifting restrictions on her work ability, but did not restrict

her hours.     See id. at 204-05, 468 S.E.2d at 683.    Employer

argued that the claimant was required to look for "full-time"

employment, despite the fact that it had offered, and the

claimant had accepted, part-time light-duty work.       Id.    Thus,

there was evidence in that record that the claimant was working

in a lesser capacity than employer argued she could have worked.


                                 - 6 -
     Similarly, in the instant case although claimant's

restrictions allowed her to work additional hours per week at a

light-duty position, employer offered her a light-duty position

with fewer hours.   She cooperated with employer's efforts and

accepted that work with its time limitations in good faith.

Employer made no request that she seek additional work.    For

these reasons, we reverse the decision of the commission.

                                                          Reversed.




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