                    COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Senior Judge Hodges
Argued at Alexandria, Virginia


JONES CHEMICAL, INC.
AND
ST. PAUL FIRE & MARINE INSURANCE COMPANY
                                             MEMORANDUM OPINION * BY
v.   Record No.   1248-96-4                 JUDGE WILLIAM H. HODGES
                                                 APRIL 1, 1997
JACK DEMPSY PARSON, SR.


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           R. Ferrell Newman (Thompson, Smithers,
           Newman & Wade, on brief), for appellants.

           Michael W. Heaviside (Lawrence J. Pascal;
           Ashcraft & Gerel, on brief), for appellee.



     Jones Chemical, Inc. and its insurer (hereinafter

collectively referred to as "employer") contend that the Workers'

Compensation Commission ("commission") erred in finding that Jack

Dempsey Parson, Sr. ("claimant") cured his unjustified refusal of

selective employment offered by employer.     We find as a matter of

law that no credible evidence supports the commission's finding

that claimant's job search efforts were sufficient to cure his

unjustified refusal of selective employment.     Accordingly, we

reverse the commission's decision.

     On June 2, 1995, claimant sustained compensable injuries to

his left ankle, hip, and back.   Pursuant to an agreement of the

parties, the commission entered an award on July 14, 1995 for

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
temporary total disability benefits beginning June 10, 1995.    On

August 21, 1995, employer filed a change in condition

application, alleging that on August 8, 1995, claimant

unjustifiably refused selective employment offered by employer.

     On August 3, 1995, Dr. Andre Eglevsky, Parson's treating

physician, opined that claimant could perform a light-duty

position proposed by employer, which required claimant to handle

and clean one-pound valves and allowed him to sit or stand.     Dr.

Eglevsky noted that claimant vehemently objected to returning to

work of any kind.    On August 4, 1995, Dr. Eglevsky approved a job

description submitted to him by employer for claimant to work as

a valve rebuilder.   The position required that claimant

alternatively sit, stand, and walk during an eight-hour period,

frequently squat, frequently use his hands to grasp and

manipulate items, and lift no more than twenty-five pounds.     The

position involved no bending, crawling or climbing.
     On August 7, 1995, employer offered claimant the valve

rebuilder job approved by Dr. Eglevsky.   Claimant called employer

the next morning, and refused to report to work because he was in

too much pain.   Claimant reported for work the next day, but

employer sent him home because claimant's supervisor was not

available.   Claimant returned to work on August 10, 1995.   Before

starting work, claimant told his supervisor that he was in pain.

Claimant left employer's premises after working approximately

two hours, claiming that he could not continue due to increasing




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pain.    Claimant returned to Dr. Eglevsky that afternoon.     Dr.

Eglevsky noted a normal examination, and he reported that no

objective evidence substantiated claimant's complaints of

discomfort.    Dr. Eglevsky opined that claimant's "subjective

complaints of pain should not interfere with his ability to

return to light work that was prescribed."

        Based upon this record, the commission ruled that claimant

had unjustifiably refused light-duty work offered by employer.

The commission found that the evidence showed that claimant had

magnified his symptoms, and that he had not made a bona fide

attempt to perform the light-duty job.    Claimant did not appeal

that finding.    Therefore, it is binding and conclusive upon us on

appeal.    The commission suspended claimant's outstanding award as

of August 10, 1995.    However, the commission reinstated

claimant's award of disability benefits beginning August 25,

1995, finding that he cured his unjustified refusal of selective

employment by adequately marketing his residual work capacity

after that date.

        The standard of review applicable to this case is as

follows:
             This appeal does not present a case of
             conflicting evidence or a dispute concerning
             the commission's findings of fact. When the
             issue is the sufficiency of the evidence and
             there is no conflict in the evidence, the
             issue is purely a question of law. This
             Court is not bound by the legal
             determinations made by the commission. "[W]e
             must inquire to determine if the correct
             legal conclusion has been reached."



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Cibula v. Allied Fibers & Plastics, 14 Va. App. 319, 324, 416

S.E.2d 708, 711 (1992) (quoting City of Norfolk v. Bennett, 205

Va. 877, 880, 140 S.E.2d 655, 657 (1965) (citations omitted)),

aff'd, 245 Va. 337, 428 S.E.2d 905 (1993).

     The undisputed evidence showed that claimant, who was

forty-two years old as of the hearing date, had an eleventh grade

education.   He had served in the military.   In addition to his

eight years of work for employer, he had worked as a cook.    On

August 25, 1995, claimant registered with the Virginia Employment

Commission ("VEC").    He also visited the VEC on October 17, 1995.
     Claimant submitted a list of forty-one job contacts he made

between August 26, 1995 and December 20, 1995, the hearing date.

Out of the five job contacts claimant made in August, two were

for laborer positions and one was for a warehouse position.     The

job duties of these three positions, from all indications, would

have entailed duties far in excess of claimant's residual work

capacity.

     During September 1995, claimant made sixteen contacts with

potential employers.   Two of these contacts were for laborer

positions and four contacts were for stock clerk positions.

Thus, six out of the sixteen contacts claimant made in September

entailed job duties which would have apparently exceeded his

residual work capacity.   Three of the businesses claimant

contacted twice during September, and two of the businesses he

had previously contacted in August.



                                - 4 -
     During October 1995, claimant made only four contacts with

prospective employers.   Two of the job contacts were for laborer

positions and the other two were for stock clerk positions, all

of which, from all appearances, would have entailed job duties

exceeding claimant's residual work capacity.    All four of the

businesses claimant contacted in October were ones that he had

previously contacted in August or September.

     During November 1995, claimant again made only four contacts

with prospective employers.    One of the job contacts was for a

laborer position, and claimant had previously contacted three of

the businesses in September.   Claimant made no job contacts after

November 8, 1995 until December 19, 1995, the day before the

hearing.
     On December 19, 1995, claimant made four contacts with

prospective employers.   Two of these contacts were for stock

clerk jobs, and claimant had previously contacted two of the

businesses in September.   On December 20, 1995, the day of the

hearing, claimant allegedly made eight job contacts and contacted

a rehabilitation counselor between the opening of business and

2:00 p.m.   One of the jobs was for a laborer position, and

claimant had previously contacted at least one of the businesses.

Finally, we note that the list appears to contain the

handwriting of several different individuals.

     Based upon all of these facts, we find that claimant's list

of alleged job contacts is inherently incredible.   Absent the




                                - 5 -
list, the evidence is not sufficient to prove that claimant made

a good faith effort to market his residual work capacity.

     "[I]f disability benefits are suspended because an employee

unjustifiably refuses selective employment offered by the

employer, the employee, nevertheless, will be entitled to a

resumption of disability benefits once he has procured comparable

employment suitable for his disability or has made a good faith

effort to obtain suitable employment."   Virginia Wayside
Furniture, Inc. v. Burnette, 17 Va. App. 74, 79, 435 S.E.2d 156,

159 (1993).

     "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).    This

Court has discussed factors which the commission should consider

in deciding whether a claimant has made reasonable good faith

efforts to market his remaining capacity:
          (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 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.

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

31, 34 (1989) (footnotes omitted).

     Once claimant unjustifiably refused the light-duty job

offered to him by employer, his wage loss was attributable to his



                              - 6 -
refusal and not to his injury.    This fact must be taken into

account in evaluating the claimant's marketing efforts.   In light

of the lack of credible evidence showing claimant's marketing

efforts, claimant's age, education, and previous work experience,

Dr. Eglevsky's unequivocal opinion that claimant could perform

light work, and the lack of any objective evidence of a disabling

condition, we find as a matter of law that claimant's evidence

did not sustain his burden of proving that he made a good faith

marketing effort sufficient to cure his unjustified refusal of

light-duty work offered by employer.
     For these reasons, we reverse the commission's decision.

                                          Reversed.




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