                             COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Clements and Senior Judge Fitzpatrick
Argued at Richmond, Virginia


VIRGINIA NATURAL GAS, INC. AND
 AGL RESOURCES

v.     Record No. 2152-06-1

CLINTON TENNESSEE                                                 OPINION BY
                                                         JUDGE JEAN HARRISON CLEMENTS
CLINTON TENNESSEE                                                AUGUST 21, 2007

v.     Record No. 2331-06-1

VIRGINIA NATURAL GAS, INC. AND
 AGL RESOURCES


            FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

               Robert A. Rapaport (Kira A. Ligto; Clarke, Dolph, Rapaport,
               Hardy & Hull, P.L.C., on briefs), for Virginia Natural Gas, Inc. and
               AGL Resources.

               John H. Klein (Charlene A. Morring; Montagna Klein Camden,
               L.L.P., on briefs), for Clinton Tennessee.


       The parties each appeal from the August 11, 2006 opinion of the Workers’ Compensation

Commission (commission) awarding Clinton Tennessee (claimant) permanent partial disability

benefits based on a 37% permanent partial impairment rating for his right leg and denying his

claim for temporary partial disability benefits because he failed to prove he adequately marketed

his residual work capacity. In their appeal, Virginia Natural Gas, Inc. and AGL Resources

(collectively, employer) contend the commission erred in awarding claimant permanent partial

disability benefits based on the inclusive 37% impairment rating rather than the 18.5% rating

specifically attributable to claimant’s compensable injury. In his appeal, claimant contends the
commission erred in finding he did not carry his burden of proving he adequately marketed his

residual work capacity. Finding no error, we affirm the judgment of the commission.1

                                        I. BACKGROUND

       The relevant facts in this case are not in dispute. On February 4, 2002, while working for

employer as a utility mechanic, claimant sustained a compensable injury by accident when he

stepped in a hole and twisted his right knee. The next day, claimant sought medical treatment at

an urgent care facility, which restricted him to light duty work and referred him to Dr. Richard

Holden, an orthopedist.

       On February 7, 2002, Dr. Holden treated claimant for a “mild strain of the right knee.”

Dr. Holden noted that claimant had a history of “aches and pains and stiffness in his knee for

some time” and that claimant’s x-rays showed “profound degenerative arthritis” of a

longstanding nature. Dr. Holden continued claimant on pain medication and released him to full

duty work.

       Claimant returned to Dr. Holden on May 6, 2004, seeking relief for “pain in his right

knee” that made it difficult for him to sleep, walk, and stand. Reporting that claimant had a

history of “significant arthritis of both knees” and that claimant’s x-rays revealed “end stage

arthritis,” Dr. Holden referred claimant to Dr. A.J. DiStasio, II, for a total knee replacement.

       Claimant saw Dr. DiStasio on May 26, 2004, at which time the doctor noted as follows:

               Mr. Tennessee is a 55-year-old gentleman who presents for
               evaluation of treatment of worsening right knee pain. While in a
               duty status on 2/4/02 he stepped in a hole sustaining a twisting
               injury to the right knee. There was immediate swelling and he has
               had persistent medial pain and stiffness since that time. . . . He is
               in essentially constant pain and notes frequent swelling of the right
               knee. He reports locking but no giving way. Symptoms are
               aggravated by any type of prolonged standing or walking,

       1
         Because these separate appeals involve common facts and proceedings, we consolidate
them for purposes of this decision. See Bennett v. Commonwealth, 8 Va. App. 228, 229 n.1, 380
S.E.2d 17, 18 n.1 (1989).
                                          -2-
                prolonged sitting, squatting, bending, etc. There [are] no specific
                relieving factors.

Dr. DiStasio also noted that claimant had “an underlying history of right knee problems and had

a right knee arthroscopy in 1991 for treatment of a medial meniscus tear” and that x-rays of

claimant’s right knee showed “tri-compartmental arthritic changes with some chondral sclerosis

joint space narrowing and osteophytes.” The doctor assessed claimant’s condition as “[r]ight

knee arthritis, exacerbated by worker’s compensation injury of 2/04/02.”

       In a follow-up history dictated June 20, 2004, Dr. DiStasio noted that, after the knee

arthroscopy in 1991, claimant “returned to full duty and did well until his recent injury on

2-4-02.” Dr. DiStasio further noted that claimant received physical therapy and medication after

the injury but was now experiencing “constant pain and frequent swelling of the right knee” with

some locking.

       Dr. DiStasio performed total knee replacement surgery on claimant’s right knee on June

30, 2004. Claimant was awarded medical benefits and temporary total disability benefits from

June 30, 2004, to September 6, 2004, based on his pre-injury average weekly wage of $860.40.

       Upon his return to work with employer, claimant was restricted to “sedentary duties

only.” On March 18, 2005, Dr. DiStasio imposed permanent work restrictions prohibiting

claimant from heavy lifting, stooping, kneeling, and crawling. Under the restrictions, claimant

was allowed to sit, lift up to 20 pounds, twist, reach, grasp, perform repetitive movement, and

drive without limitation. The restrictions further permitted claimant to stand, walk, climb stairs,

and bend for 3 to 5 hours at a time. Claimant continued working for employer until June 1,

2005, at which time employer informed him that it no longer had suitable light duty work

available for him.

       Within two weeks after his light duty work with employer ended, claimant, who had been

with employer as a utility mechanic for 18 years, registered with the Virginia Employment
                                            -3-
Commission (employment commission). The employment commission gave claimant a list of

four job opportunities. Claimant contacted each of the employers on the list. One of the jobs

required heavy lifting, which was not permitted by his work restrictions. He applied for the other

three jobs that were within his work restrictions. He was told that, between his retirement and

workers’ compensation benefits, he was paid too much to qualify for one of the jobs, and he

never heard back from another. He accepted the remaining position, the only one offered to him,

as a van driver and started working on August 15, 2005. After obtaining the job as a van driver,

claimant discontinued his job search.

        Claimant earned $7 an hour in his new job and averaged approximately $250 per week in

earnings. The job was “a part-time position.” Claimant worked approximately six hours a day

driving the van but sometimes got “a little extra time . . . to do some other work,” but not every

day. Some weeks, he worked more than 40 hours, but, overall, averaged less than 36 hours per

week.

        On August 11, 2005, Dr. DiStasio executed a form stating as follows:

                      With regard to [claimant], it is my opinion, to a reasonable
               degree of medical certainty, that:

                     [Claimant] reached maximum medical improvement as of
               March 18, 2005.

                        [Claimant] has a 37% permanent partial impairment rating
               to the right lower extremity as a result of his February 4, 2002
               work-related injury. Of that percentage, 50% is attributable to his
               pre-existing arthritic condition.

        On November 14, 2005, the deputy commissioner conducted a hearing on claimant’s

application for “an award of compensation for temporary total disability from June 1 to August

14, 2005; temporary partial disability from August 15, 2005, and continuing; and permanent

partial disability for an alleged 37% loss of use of his right leg.” Employer defended the claim

on the grounds that “claimant’s loss of use related to [the industrial] accident was 18.5% and that
                                            -4-
. . . claimant had failed to market his residual capacity.” Following the presentation of evidence,

the deputy commissioner awarded claimant permanent partial disability benefits based on an

18.5% permanent partial impairment rating and denied claimant’s request for temporary total and

temporary partial disability benefits because he failed to market his residual work capacity.

Claimant appealed the deputy commissioner’s reduced award of permanent partial disability

benefits and denial of temporary partial disability benefits.

       Finding, on review, that the evidence was “sufficient to support an award for scheduled

loss under Code § 65.2-503 based on the 37 percent [permanent partial impairment] rating to the

right leg assigned by the claimant’s treating physician,” the full commission reversed the deputy

commissioner’s award of permanent partial disability benefits based on the 18.5% rating. In

reaching that decision, the commission noted as follows:

               Dr. DiStasio, the claimant’s treating orthopedist, indicated that the
               claimant sustained a 37 percent permanent partial impairment
               rating to the right lower extremity “as a result of his February 4,
               2002, work-related injury.” He then confusingly related 50 percent
               of the rating to the claimant’s “pre-existing arthritis condition.”
               We resolve this ambiguity by reference to other medical reports.
               Dr. DiStasio’s initial diagnosis was right knee arthritis
               “exacerbated” by the work injury. He also reported that the
               claimant had done well until the work injury, after which he was in
               constant pain.

                       Although the claimant clearly had arthritis in his knee
               before the industrial injury, we do not find any persuasive evidence
               of a pre-existing functional loss. Accordingly, we cannot find that
               the claimant had a pre-existing percentage loss of use prior to the
               accident which can be reasonably deducted from the claimant’s
               award.

       Also finding claimant failed to carry his burden of proving he marketed his residual work

capacity, a majority of the full commission affirmed the deputy commissioner’s denial of the

requested temporary partial disability benefits.

       These appeals followed.

                                            -5-
                     II. PERMANENT PARTIAL IMPAIRMENT RATING

       On appeal, employer does not dispute the commission’s finding that Dr. DiStasio

diagnosed that claimant’s February 4, 2002 injury by accident “exacerbated” claimant’s existing

arthritic condition in his right knee or that Dr. DiStasio indicated that claimant “sustained a 37

percent permanent partial impairment rating to the right lower extremity ‘as a result of his

February 4, 2002, work-related injury.’” Rather, employer solely contends that, unlike the

deputy commissioner, who reduced claimant’s permanent partial impairment rating from 37% to

18.5% based on Dr. DiStasio’s opinion that half of the 37% rating was attributable to claimant’s

pre-existing arthritic condition, the full commission improperly failed to account for that portion

of Dr. DiStasio’s opinion. Employer argues that, based on Dr. DiStasio’s opinion, the

commission should have given it a credit for the 18.5% impairment causally related to the

pre-existing disability to claimant’s right leg. Thus, employer concludes, the commission erred

in awarding claimant permanent partial disability benefits based on the entire 37% impairment

rating assigned by Dr. DiStasio rather than the 18.5% rating the doctor specifically attributed to

claimant’s compensable injury. We disagree.

       “Under well recognized principles governing the standard of review on appeal, we must

affirm the commission’s judgment awarding [permanent partial disability] if those findings are

supported by credible evidence in the record, regardless of whether contrary evidence exists or

contrary inferences may be drawn.” Rusty’s Welding Service, Inc. v. Gibson, 29 Va. App. 119,

131, 510 S.E.2d 255, 261 (1999) (en banc) (citing Code § 65.2-706(A)). “In determining

whether credible evidence exists, [we do] not retry the facts, reweigh . . . the evidence, or make

[our] own determination of the credibility of the witnesses.” Wagner Enters., Inc. v. Brooks, 12

Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). Moreover, “we must view the evidence in the




                                            -6-
light most favorable to [claimant,] the party who prevailed before the commission” on this issue.

K & K Repairs & Constr. v. Endicott, 47 Va. App. 1, 6, 622 S.E.2d 227, 229 (2005).

       “Code § 65.2-503 of the Virginia Workers’ Compensation Act generally deals with

compensation for permanent loss.” Georgia-Pacific Corp. v. Dancy, 255 Va. 248, 249, 497

S.E.2d 133, 133 (1998). Code § 65.2-503(B) “provides a schedule of benefits for the loss of

specific body parts,” Stanfield v. City of Hampton Fire & Rescue, 31 Va. App. 240, 241, 522

S.E.2d 404, 405 (1999), including the loss of a leg, see Code § 65.2-503(B)(13). Code

§ 65.2-503(D) provides, in pertinent part, that, “[i]n construing this section, the permanent loss

of the use of a member shall be equivalent to the loss of such member, and for the permanent

partial loss or loss of use of a member, compensation may be proportionately awarded.” Hence,

“a numerical rating [of the permanent partial loss of use of the injured body part] is required so

that benefits may be proportionally awarded according to the percentage loss and determined by

the schedule in Code 65.2-503(B).” Hill v. Woodford B. Davis Gen. Contractor, 18 Va. App.

652, 654, 447 S.E.2d 237, 237-38 (1994) (citing County of Spotsylvania v. Hart, 218 Va. 565,

568, 238 S.E.2d 813, 815 (1977) (requiring the commission to rate “the percentage of incapacity

suffered by the employee” before awarding permanent partial benefits)).

                       The commission, in determining permanent partial
               disability benefits, must rate claimant’s percentage of incapacity
               based on the evidence presented to it. In doing so, it gives great
               weight to the treating physician’s opinion. If there is any doubt in
               the treating physician’s opinion, or if there is contrary expert
               medical opinion, “the commission is free to adopt that which is
               most consistent with reason and justice.”

United Airlines, Inc. v. Sabol, 47 Va. App. 495, 501-02, 624 S.E.2d 692, 695 (2006) (citations

omitted) (quoting Williams v. Fuqua, 199 Va. 709, 714, 101 S.E.2d 562, 567 (1958)).

       In this case, the only evidence in the record supporting an award of permanent partial

disability benefits under Code § 65.2-503(B) and 65.2-503(D) was provided by claimant’s

                                            -7-
treating orthopedic surgeon, Dr. DiStasio, who stated that claimant had “a 37% permanent partial

impairment rating to the right lower extremity as a result of his February 4, 2002 work-related

injury.” Dr. DiStasio further stated that, “[o]f that percentage, 50% [was] attributable to

[claimant’s] pre-existing arthritic condition.” Employer argues that the latter statement of

Dr. DiStasio relieves it from liability for that half of the overall 37% impairment rating that was

attributable to claimant’s arthritic condition, which pre-existed the industrial accident. See

Virginia Fibre Corp. v. Moore, 17 Va. App. 691, 693, 440 S.E.2d 432, 434 (1994) (recognizing

that Code § 65.2-505 “relieves an employer from liability for that portion of a compensable

injury that pre-existed” the industrial accident).

       Employer’s argument, however, runs counter to the principle set forth in United Airlines,

Inc. that an employer is entitled to a credit for a pre-existing condition or defect only if the

“evidence show[s] that the claimant suffered a pre[-]existing functional loss” of use. 47

Va. App. at 502-03, 624 S.E.2d at 695 (internal quotation marks omitted); cf. Virginia Fibre

Corp., 17 Va. App. at 692, 440 S.E.2d at 433 (citing Walsh Constr. Co. v. London, 195 Va. 810,

818, 80 S.E.2d 524, 528 (1954), for the proposition that, in determining permanent partial

disability benefits, “where a pre-existing injury to or disability in a sense organ did not materially

affect the employee’s overall ability to use the organ, no benefit would accrue to the employer

for any pre-injury disability to the organ” and declining to allow the employer a credit for the

claimant’s measurable pre-existing hearing loss because that loss was not shown to have

materially affected his ability to use his hearing). In other words, for purposes of determining

permanent partial disability benefits under Code § 65.2-503(B) and 65.2-503(D) for an

employee’s permanent partial loss of use of a body part, the commission may deduct that portion

of an impairment rating attributable to a pre-existing condition or defect in the body part only

where it is shown that the employee suffered a permanent pre-existing functional loss of use of

                                             -8-
that body part as a result of the pre-existing condition or defect. Thus, where no permanent

pre-existing functional loss of use of the body part is shown, the commission may not allow the

employer a credit for a condition or defect that pre-existed the compensable injury.

        Here, the commission acknowledged that “claimant clearly had arthritis in his knee

before the industrial injury” and that Dr. DiStasio opined that half of the 37% rating was

attributable to claimant’s pre-existing arthritic condition. Applying the aforementioned principle

set forth in United Airlines, Inc., however, the commission determined it could not reduce

claimant’s impairment rating from 37% to 18.5% based on Dr. DiStasio’s opinion because there

was no evidence in the record showing that claimant suffered a permanent pre-existing

functional loss of use of his right leg as a result of the arthritic condition.

        The record supports the commission’s determination. Indeed, nothing in the record

indicates that claimant experienced any permanent functional loss of use of his right leg prior to

the compensable injury on February 4, 2002. There is no evidence, for instance, that he was ever

diagnosed with a permanent impairment, given a permanent impairment rating, or placed under

any permanent work restrictions before the compensable injury. To the contrary, Dr. DiStasio

specifically noted that, after claimant’s prior knee surgery in 1991, claimant “returned to full

duty and did well until” the compensable injury. Moreover, the record establishes that the

symptomatic limitations that ultimately necessitated the total knee replacement surgery did not

arise until after, as Dr. DiStasio noted, the injury by accident “exacerbated” the pre-existing

arthritic condition.

        Because there was no evidence presented that showed claimant suffered a permanent

pre-existing functional loss of use of his right leg, employer was not entitled to a credit for

claimant’s pre-existing arthritic condition. See United Airlines, Inc., 47 Va. App. at 502-03, 624

S.E.2d at 695. We hold, therefore, that the commission did not err in refusing to allow employer

                                              -9-
such a credit and in awarding claimant permanent partial disability benefits based on the entire

37% impairment rating assigned by claimant’s treating orthopedic surgeon.

                      III. MARKETING RESIDUAL WORK CAPACITY

       In his appeal, claimant contends the commission erred in denying his request for

temporary partial disability benefits on the ground that he failed to prove he adequately marketed

his residual work capacity. He argues that the fact that he promptly registered with the

employment commission after his light duty position with employer ended, followed up on all of

the job leads provided by the employment commission, applied for all three of the jobs that were

within his work restrictions, and took the first and only job that was offered amply demonstrated

that he adequately marketed his residual work capacity. Thus, he concludes, the commission’s

decision that he “did not provide sufficient evidence of marketing should be reversed as there is

no credible evidence to support the [c]ommission’s finding.” We disagree.

       A partially disabled employee “who seeks compensation of the wage differential between

his new and his old jobs, has the burden of proving that he has made a reasonable effort to

market his full remaining work capacity.” Nat’l Linen Serv. v. McGuinn, 8 Va. App. 267, 270,

380 S.E.2d 31, 33 (1989). “What constitutes a reasonable marketing effort depends upon the

facts and circumstances of each case.” The Greif Companies v. Sipe, 16 Va. App. 709, 715, 434

S.E.2d 314, 318 (1993). Indeed, “[w]hat is reasonable in one area, or in one industry, or even in

one season might not be reasonable in another. The employee must obviously exercise

reasonable diligence in seeking employment, and what is reasonable in a given case will depend

upon all of the facts and surrounding circumstances.” Great Atl. & Pac. Tea Co. v. Bateman, 4

Va. App. 459, 467, 359 S.E.2d 98, 102 (1987).

                       [I]n deciding whether a partially disabled employee has
               made reasonable effort to find suitable employment commensurate
               with his abilities, the commission should consider such factors as:
               (1) the nature and extent of employee’s disability; (2) the
                                          - 10 -
               employee’s training, age, experience, and education; (3) the nature
               and extent of 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 employee’s capacity to find suitable
               employment. The commission, of course, determines which of
               these or other factors are more or less significant with regard to the
               particular case.

Nat’l Linen Serv., 8 Va. App. at 272-73, 380 S.E.2d at 34-35 (footnotes omitted). “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.” Wall Street Deli,

Inc. v. O’Brien, 32 Va. App. 217, 220-21, 527 S.E.2d 451, 453 (2000).

       “On appeal, we view the evidence in the light most favorable to [employer], the

prevailing party before the commission” on this issue. Allen v. Southern Commercial Repair,

Inc., 40 Va. App. 116, 121, 578 S.E.2d 64, 67 (2003). So viewed, we conclude the record

supports the commission’s finding that claimant failed to prove he made a reasonable effort to

market his full residual work capacity. Although claimant offered evidence to show he was

unable to continue in the same line of work he performed for employer as a utility mechanic due

to his physical limitations and the work restrictions imposed by Dr. DiStasio, he offered no

evidence showing that the part-time position he obtained as a van driver, which paid less than

one third of his pre-injury average weekly wage of $860.40, accurately reflected his full residual

earning capacity. As the deputy commissioner pointed out, “[i]t may be that . . . claimant ha[d]

no useful transferable skill” that would enable him to obtain employment paying more than a

minimal hourly wage, but the evidence he presented relative to the factors set forth in National

Linen Service failed to prove that was the case.

       The record established that claimant registered with the employment commission shortly

after his job with employer ended on June 1, 2005, and that he pursued each of the four job leads
                                           - 11 -
provided by the employment commission. Only the position of van driver was offered to him.

He accepted that job and started working on August 15, 2005. However, claimant produced no

evidence of any other efforts on his part to obtain employment during that period. Nor did he

produce any evidence regarding his marketable skills or the availability in the area of jobs

commensurate with his experience, training, education, and physical capabilities. The record

further established that claimant completely discontinued his job search after obtaining the van

driver position and, thus, made no effort to obtain a full-time, higher-paying job. Claimant

presented no evidence explaining why he failed to seek more lucrative employment or showing

that such employment was unavailable to him “either due to his injury or because no such work

was available in the community.” Nat’l Linen Serv., 8 Va. App. at 271, 380 S.E.2d at 34.

Accordingly, the commission could properly find, based on the evidence before it, that claimant

failed to prove he adequately marketed his full residual work capacity.

       Nevertheless, claimant urges us to fashion a per se rule that the mere fact that an

employee registers with the employment commission, follows up on every job lead provided by

the employment commission, and takes the first job he is offered is sufficient, as a matter of law,

to prove he made a reasonable effort to market his full residual work capacity. We decline to do

so.

       In National Linen Service, we held that “the mere fact that the employee obtained a new

job, where the pay is substantially less than that received at the old job, is, standing alone,

insufficient proof of making a reasonable effort to market one’s remaining work capacity.” 8

Va. App. at 268, 380 S.E.2d at 32. In Wall Street Deli, Inc., we held that evidence that the

employee made no effort after obtaining a part-time, low-paying job to obtain more lucrative

employment consistent with his capabilities, along with the employee’s failure to produce

evidence regarding the lack of availability of such employment in his area, “establish[ed] an

                                            - 12 -
absence of effort on his part” to market his full residual work capacity. 32 Va. App. at 221, 527

S.E.2d at 453. Consistent with these decisions, we cannot say that the evidence presented in this

case is sufficient, as a matter of law, to prove claimant made a reasonable effort to market his full

residual work capacity. Simply registering with the employment commission and pursuing the

job listings provided by that agency are not, under the circumstances of this case, sufficient, by

themselves, to demonstrate that claimant made a reasonable effort to market his full residual

work capacity. Given the large disparity between the wages he earned in the part-time job as a

van driver and those he earned in his pre-injury job, claimant had to establish that he made a

reasonable effort, after accepting the part-time job, to obtain more lucrative employment or show

that such employment was not available in the community or beyond his skills and work

restrictions.

        Because the record contains credible evidence to support the commission’s finding that

claimant failed to carry his burden of proving he made a reasonable effort to market his full

residual work capacity, we hold the commission did not err in denying claimant’s request for

temporary partial disability benefits on that ground.

                                       IV. CONCLUSION

        For these reasons, we affirm the judgment of the commission.

                                                                                     Affirmed.




                                           - 13 -
