                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Argued at Roanoke, Virginia


LYNCHBURG GENERAL HOSPITAL

v.         Record No. 0343-95-3                  OPINION BY
                                       JUDGE JOHANNA L. FITZPATRICK
ANTONIA SPINAZZOLO                             MARCH 26, 1996


          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             Christine Smith (Bernard C. Baldwin, III;
             James O. Watts, IV; Edmunds & Williams, P.C.,
             on brief), for appellant.
             Robert E. Evans for appellee.



        In this workers' compensation case, Lynchburg General

Hospital (employer) appeals the commission's decision awarding

benefits to Antonia Spinazzolo (claimant).    Employer argues that

the commission erred in:    (1) awarding claimant compensation when

she was recovering from surgery for an unrelated condition; (2)

finding that claimant's work release was qualified by her

treating physician; and (3) finding that claimant did not remove

herself from the labor market by attending nursing school full

time.    For the reasons that follow, we affirm the commission.
                              BACKGROUND

        Beginning in October 1988, claimant worked for employer as a

phlebotomy technician during the second shift from 3:00 p.m. to

11:30 p.m.    On August 31, 1992, she injured her right wrist, and

employer accepted this injury as compensable.       Prior to her

injury, claimant enrolled as a nursing student at the hospital,
and employer voluntarily worked with her to schedule her work

hours around her classes.   Until she was injured, claimant had

planned to work full time during her first year of nursing

school, thirty-two hours per week during her second year, and

fewer hours during her third year.    Claimant began nursing school

as a full-time student in August 1993.

       From the date of the accident until September 1993, employer

provided claimant continuous light-duty work as a charter, 1

excluding the periods from September 30 to October 15, 1992, and

April 22 to June 20, 1993, when she remained totally disabled.

In September 1993, claimant returned to her regular employment

for two weeks, but again suffered pain and swelling in her hand.

 When claimant was unable to perform her pre-injury job, her

treating physician, Dr. James C. Dunstan, Jr., placed her on

restricted duty.    Employer again provided her light-duty work as

a charter.   While claimant was working as a charter, the hospital

engaged in "creative scheduling" to coordinate claimant's work

and school hours.   On December 21, 1993, Dr. Dunstan reported

that claimant would have "to give up her Phlebotomist job for a

variety of reasons, but I think they all involve the weakness in

her right hand and wrist. . . . [S]he's never going to have a

normal wrist and the dexterity required of this particular job."

 Employer eliminated the charter position in December 1993 when
   1
     Claimant testified that a charter's responsibilities included
making copies of test results, taking the copies to the floor, and
noting the results on the patient charts.



                                  2
it began sending the test results to each floor through the

hospital computer system.    Claimant did not work from December

1993 to March 1994 because employer had no light-duty jobs

available.

        After termination by employer, claimant cooperated with the

vocational rehabilitation counselor provided by employer and met

with him on January 29, 1994, February 18, 1994, and February 23,

1994.    Claimant complied with all of the counselor's requests and

submitted several employment applications.    In March 1994,

claimant began working at NTS Marketing, Inc. (NTS), a job she

obtained through the Virginia Employment Commission (VEC).       NTS

offered claimant full-time employment from 9:00 a.m. to 5:30

p.m., but she refused it and worked part time in the late

afternoons and evenings so that she could continue her education.

She also had a baby-sitting job from March 1994 to May 1994 and

worked for a sitter/companion agency.    Claimant sought jobs that

would not conflict with her nursing school classes and, at times,

worked two jobs.    In August 1994, claimant applied for a courier

job with employer, a job that required full-time hours from 10:00

a.m. to 7:00 p.m.    Employer never offered claimant the job

because of the potential conflict with her educational plan, but

attempted to find someone to split the hours with her.
        On May 31, 1994, Dr. Dunstan noted that claimant could

attempt work as a phlebotomist on a trial basis, and he

reiterated this "work trial" release on July 15, 1994 and August




                                   3
4, 1994.   However, claimant underwent surgery in June 1994 for an

unrelated problem and was unable to work from June 8, 1994 to

July 15, 1994.   In his August 25, 1994 deposition, Dr. Dunstan

stated that claimant should be able to perform most tasks

required of a phlebotomist, but qualified his response:      "I would

feel she's definitely able to try this job. . . . If she can do

it, great; if the pain is too limiting to her, then I would have

to say she couldn't, but I think she's definitely able to try

it."   (Emphasis added).   During the deposition, Dr. Dunstan noted

claimant's potential problems in performing her pre-injury

employment, such as range of motion limitations and difficulty in

locating her hand when drawing blood.
       Claimant filed an application for benefits beginning April

4, 1994 and continuing.    During her deposition, claimant

testified that, at all times, she has been available to work the

second shift from 3:00 p.m. to 11:30 p.m., the shift she worked

prior to her accident.     Claimant is willing to try her pre-injury

employment as a phlebotomist, but employer has not offered her

the opportunity.

       In awarding claimant benefits, the commission found that:

(1) regardless of the unrelated surgery in June 1994, claimant

would have remained disabled from her pre-injury employment from

June 8, 1994 to July 15, 1994; (2) Dr. Dunstan merely released

claimant to perform her pre-injury employment on a "work trial"

basis; and (3) although claimant is a full-time nursing student,



                                   4
under the facts of this case, she did not remove herself from the

labor market.




                                5
      COMPENSATION DURING RECOVERY FOR UNRELATED CONDITION

     Employer argues that the commission erred in finding that

claimant was entitled to compensation during the period in which

she was recovering from surgery for a condition unrelated to her

industrial accident.

     On appeal, "we review the evidence in the light most

favorable to the prevailing party."   R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

"Factual findings of the . . . [c]ommission will be upheld on

appeal if supported by credible evidence."   James v. Capitol

Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488

(1989).

     The commission determined that, "[r]egardless of [her] other

conditions, the employee would have remained disabled as a result

of the industrial accident for the period claimed."   Credible

evidence supports this finding.   During the period in dispute,

claimant had not been released to return to her pre-injury

employment.   Although claimant's surgery produced a concurrent

disability, the evidence established that she had not fully

recovered from her compensable injury.   The dates of claimant's

recovery period for the intervening injury were June 8, 1994 to

July 15, 1994, a period prior to Dr. Dunstan's release of

claimant to her pre-injury employment on August 4, 1994.    Thus,

the commission did not err in holding employer responsible for

compensation during the disputed period.



                                  6
                           WORK RELEASE


     Employer next contends that the commission erred in finding

that claimant's work release was qualified by her treating

physician.

     In addressing the work release issue, the commission found

that, "[a]lthough Dr. Dunstan indicated that the employee could

attempt her pre-injury employment on several occasions, there is

no absolute release to full duty in the record."   Credible

evidence supports the commission's finding that Dr. Dunstan did

not give claimant an unqualified release to return to her pre-

injury employment.   In December 1993, Dr. Dunstan indicated that

claimant's wrist would never again have the dexterity required of

a phlebotomist.   During three separate visits from May to August

1994, he told claimant she could attempt her pre-injury

employment on a "work trial" basis.   Additionally, Dr. Dunstan

noted several potential limitations that claimant might encounter

in attempting her pre-injury employment, including performing

tasks that require a complete range of motion and locating her

hand when drawing blood.   Under these facts, the commission did

not err in finding that Dr. Dunstan qualified claimant's work

release.
             FAILURE TO MARKET REMAINING WORK CAPACITY

     Lastly, employer argues that the commission erred in finding

that claimant did not effectively remove herself from the labor

market by limiting her job search to second-shift work because of




                                 7
her status as a full-time student.

     "In order to continue to receive benefits under the Workers'

Compensation Act, a claimant who has been injured in a

job-related accident must market [her] remaining capacity to

work."   Herbert Bros. v. Jenkins, 14 Va. App. 715, 717, 419

S.E.2d 283, 284 (1992).   "What constitutes a reasonable marketing

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

Greif Companies (GENESCO) v. Sipe, 16 Va. App. 709, 715, 434

S.E.2d 314, 318 (1993).
          [I]n deciding whether a partially disabled
          employee has made reasonable effort to find
          suitable employment commensurate with [her]
          abilities, the commission should consider
          such factors as: (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 suitable employment.


National Linen Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d

31, 34 (1989) (footnotes omitted).   "The commission . . .

determines which of these or other factors are more or less

significant with regard to the particular case."   Id. at 272-73,

380 S.E.2d at 34-35.

     In examining a claimant's "intent in conducting [her] job

search," the commission must decide "whether it was evident from

the employee's conduct that [s]he was acting in good faith in

seeking suitable employment."   Id. at 272 n.3, 380 S.E.2d at 34



                                 8
n.3.   "Other factors that the commission should consider include

whether the employee voluntarily removed [her]self from the job

market, 2 whether the employee unreasonably restricted the

geographic area of [her] search, and whether . . . she is capable

of being retrained."    Id. at 272 n.5, 380 S.E.2d at 34 n.5

(emphasis added) (citation omitted).   Similarly, another factor

that the commission should consider is whether the employee

unreasonably restricted her job search by imposing a time

limitation, as in the instant case.
       "Upon judicial review of the commission's finding that a

claimant has made a reasonable marketing effort, the Court must

view the evidence in the light most favorable to the prevailing

party.   However, where, as here, there is no conflict in the

evidence as to the relevant factors, the question of sufficiency

is one of law."    Sipe, 16 Va. App. at 716, 434 S.E.2d at 318

(citation omitted).

       Under the circumstances existing in this case, we cannot say

   2
     Whether a claimant has voluntarily removed herself from a
portion of the labor market is only one factor that the commission
must consider in determining whether a claimant has reasonably
marketed her residual capacity. A claimant voluntarily removes
herself from the labor market if he or she "has the physical
capacity for employment at the time of the removal." Baskerville
v. Saunders Oil Co., 1 Va. App. 188, 192, 336 S.E.2d 512, 514
(1985). However, the commission has held that "mere status as a
full time student does not, by itself, establish the employee
cannot actively participate in vocational rehabilitation."
Helmick v. Rubbermaid Commercial Prods., Inc., 71 O.I.C. 284, 285
(1992). "[A]t a minimum, there must be some showing that the
employee's status as a full time student interfered with the
vocational rehabilitation efforts." Id.



                                  9
as a matter of law that the commission erred in finding that

claimant adequately marketed her residual capacity and did not

remove herself from the labor market by continuing to attend

nursing school while attempting to work.   The commission

specifically found as follows:
          [C]laimant cooperated with vocational
          rehabilitation efforts, obtained employment,
          attempted to return to her pre-injury
          employment, and worked while attending
          nursing school full-time. [She] is also
          willing to attempt her pre-injury employment
          again and is available to work full-time
          hours. These hours are also identical to
          those required by her pre-injury employment
          since 1988. Under these circumstances, we
          find that the employee has not removed
          herself from the labor market and is entitled
          to compensation.

In making these findings, the commission implicitly determined

that claimant reasonably marketed her remaining work capacity.

     The commission must weigh the McGuinn factors in determining

whether an employee has adequately marketed his or her remaining

capacity to work, and this determination depends upon the facts

in each case.   One factor may provide greater support for the

commission's decision than another based on the overall

circumstances in each case.   In the instant case, the evidence

established that:   (1) after her accident, claimant accepted

light-duty employment with employer as a charter and worked at

the hospital until the charter position was eliminated in

December 1993; (2) claimant cooperated fully with the vocational

rehabilitation counselor provided by employer by meeting with the



                                10
counselor three times, submitting several employment

applications, and complying with all of the counselor's requests;

(3) claimant registered with the VEC and obtained part-time

employment at NTS; (4) claimant also worked as a baby-sitter and

as a companion, often working two jobs while attending school

full time; (5) in August 1994, claimant applied for the courier

position at the hospital; (6) employer never offered the courier

position to claimant but tried to find someone to split the hours

with claimant; (7) before her accident, claimant enrolled as a

nursing student and employer engaged in "creative scheduling" to

tailor claimant's work hours to her school hours; (8) since

October 1988, claimant had worked the second shift from 3:00 p.m.

to 11:30 p.m. and, after the accident, claimant was available for

second-shift work at all times; and (9) claimant is willing to

attempt her pre-injury employment.
     Although similar time restrictions on a job search might

under other circumstances be unreasonable, credible evidence

supports the commission's finding that claimant's limitation of

her search to second-shift positions was reasonable in light of

her extensive marketing efforts and the history between the

parties.   Employer essentially lulled claimant into believing

that she was not required to find additional full-time

employment.   Employer coordinated her school hours and work hours

before and after her accident by providing claimant with second-

shift employment.   When claimant applied for the courier position




                                11
in August 1994, employer did not offer the position to claimant,

but instead searched for someone to share the hours with her so

that her work would not conflict with her education. 3   Thus, both

her employment history with the hospital as a second-shift

employee and employer's affirmative endorsement of claimant's

work and school schedule before and after her accident support

the commission's finding that claimant reasonably marketed her

remaining work capacity and did not remove herself from the labor

market by attending school full time.
        Accordingly, the decision of the commission is affirmed.
                                                Affirmed.




    3
     If employer had offered the courier job to claimant, she would
have been required to accept it to continue receiving benefits.




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