                                             Friday         20th

          November, 1998.


USAir, Inc. and
 Reliance National Insurance Company,                       Appellants,

against      Record No. 0357-97-4
             Claim No. 160-50-72

Robert S. Joyce,                                            Appellee.


          From the Virginia Workers’ Compensation Commission


          On November 18, 1998 came again the appellants, by counsel,

and it appearing to the Court that the parties have settled the

matters in controversy, it is ordered that this appeal be, and the

same is hereby, dismissed.

          This order shall be certified to the Virginia Workers’

Compensation Commission.

                             A Copy,

                                  Teste:

                                           Cynthia L. McCoy, Clerk

                                  By:

                                           Deputy Clerk
                                              Tuesday        2nd

          June, 1998.



USAir, Inc. and Reliance National
 Insurance Company,                                          Appellants,

against         Record No. 0357-97-4
                Claim No. 160-50-72

Robert S. Joyce,                                             Appellee.


                   Upon a Petition for Rehearing En Banc

                           Before the Full Court


          On May 1, 1998 came the appellants, by counsel, and filed a

petition praying that the Court set aside the judgment rendered herein

on April 21, 1998, and grant a rehearing en banc thereof.

          On consideration whereof, the petition for rehearing en banc

is granted, the mandate entered herein on April 21, 1998 is stayed

pending the decision of the Court en banc, and the appeal is

reinstated on the docket of this Court.

          The parties shall file briefs in compliance with Rule 5A:35.

It is further ordered that the appellants shall file with the clerk

of this Court ten additional copies of the appendix previously filed

in this case.

                             A Copy,

                                  Teste:

                                            Cynthia L. McCoy, Clerk

                                  By:

                                            Deputy Clerk




                                   - 2 -
                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, * Judges Baker and Annunziata
Argued at Alexandria, Virginia


USAIR, INC. AND
 RELIANCE NATIONAL INSURANCE COMPANY
                                               OPINION BY
v.         Record No. 0357-97-4          JUDGE JOSEPH E. BAKER
                                             APRIL 21, 1998
ROBERT S. JOYCE


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           David A. Walsh (Hunton & Williams, on brief),
           for appellants.

           No brief or argument for appellee.


     USAir, Inc. (employer) appeals a decision of the Workers'

Compensation Commission reinstating benefits to Robert S. Joyce

(claimant).   Employer contends on appeal that claimant's failure

adequately to market his residual work capacity, as required by

Code § 65.2-510, bars his receipt of benefits.     For the reasons

that follow, we hold that claimant had no duty to market his

residual capacity under the facts of this case, and we affirm the

commission's decision.

     Claimant, a forty-two-year-old aircraft mechanic, suffered a

compensable back injury by accident on September 30, 1992.

Claimant received temporary total disability benefits which were

suspended on April 27, 1994, based upon a finding that he refused

medical treatment by treating with an unauthorized physician.     On

March 4, 1996, claimant saw Dr. Samuel Hawken, a physician

     *
      On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
selected from employer's designated panel.   Dr. Hawken released

claimant to light-duty work.    Claimant subsequently filed a

change-in-condition application for reinstatement of his benefits

because he had cured his earlier refusal of medical treatment.

Employer contested the reinstatement, arguing that claimant

failed to market his residual work capacity.

     The evidence established that after Dr. Hawken released

claimant to return to light-duty work, claimant requested work

within his capacity from his supervisor, Mr. Zee, and Ted

Goodlander, employer's regional director.    They advised claimant

that no light-duty work was available.   Claimant works for

employer under a union contract which precludes his taking

outside employment.   As a consequence of this contractual

limitation, claimant requested a "stipulation" from employer that

he be allowed to market outside the company as a real estate

agent without losing his job.   Employer refused the request, and

claimant made no further attempts to market his residual work

capacity.

     On January 31, 1997, the commission found that claimant had

cured his earlier refusal and, under the facts of this case, had

adequately marketed his residual capacity.
                 Dr. Hawkin [sic] released the claimant
            to light duty. He asked the employer whether
            he could return to work in a light duty job,
            and was informed that none was available at
            that time. He further asked the employer if
            he had permission to work elsewhere, as a
            real estate agent, and he was told that he




                                - 4 -
          could not do so. As the claimant explained,
          his contract of employment with USAir
          prohibits him from accepting employment
          elsewhere while on disability leave without
          the employer's authorization.

              *     *     *     *      *    *     *

               [C]laimant has reasonably marketed under
          the circumstances. He offered to return to
          his pre-injury employer in a light duty
          capacity, but a selective employment position
          was not available at that time. He then
          sought authorization to obtain other
          employment while still remaining an employee
          and thus maintain eligibility for light
          duty. . . . As a matter of equity, the
          employer cannot have it both ways - on the
          one hand refusing to allow the claimant to
          market his capacity, and then denying
          compensation on the grounds that he has not
          marketed. . . .

               We find that the claimant acted
          reasonably and prudently in preserving his
          employment options with USAir, and seeking
          selective work with the company with whom he
          has a seventeen year employment history,
          rather than to go against the employer's
          dictates.

     In order to receive continued benefits under a

change-in-condition application, a partially disabled employee

must prove that he made reasonable efforts to market his residual

wage-earning capacity.   See, e.g., Virginia Int'l Terminals v.
Moore, 22 Va. App. 396, 401, 470 S.E.2d 574, 577 (1996) (citing

National Linen Serv. v. McGuinn, 8 Va. App. 267, 269, 380 S.E.2d

31, 34 (1989)), aff'd, 254 Va. 46, 486 S.E.2d 528 (1997).     "Upon

judicial review of the commission's finding that a claimant has

made a reasonable marketing effort, the Court must view the




                               - 5 -
evidence in the light most favorable to the prevailing party."

Greif Cos. v. Sipe, 16 Va. App. 709, 716, 434 S.E.2d 314, 318

(1993).   However, "[w]here, as here, there is no conflict in the

evidence, 'the question of the sufficiency of the evidence is one

of law.'"    CLC Constr. Inc. v. Lopez, 20 Va. App. 258, 267, 456

S.E.2d 155, 159 (1995) (quoting National Linen Serv., 8 Va. App.

at 270, 380 S.E.2d at 33).   "What constitutes a reasonable

marketing effort depends on the facts and circumstances of each

case."    Sipe, 16 Va. App. at 715, 434 S.E.2d at 318.

     Employer contends that claimant failed to prove he

reasonably marketed his residual capacity.   We disagree.   Simply

put, employer, by virtue of its employment contract with

claimant, offered him an unacceptable choice:   to forego workers'

compensation benefits or lose his job.   Employer sought to

prevent claimant from obtaining the benefits intended by the

legislature under the Workers' Compensation Act by refusing to

waive its right to terminate claimant's employment if he accepted

residual employment and then seeking to terminate his disability

benefits because he did not seek such employment.   We do not

believe this result was intended by the legislature.

     Our law requires a partially disabled employee to make

reasonable efforts to market his residual wage-earning capacity

in order to establish entitlement to disability compensation,
see, e.g., National Linen Serv., 8 Va. App. at 269, 380 S.E.2d at

33, but that law may not fairly be applied to the facts of this




                                - 6 -
case.

             The purpose of the Workers' Compensation Act
             is to provide compensation to an employee for
             the loss of his opportunity to engage in
             work, when his disability is occasioned by an
             injury suffered from an accident arising out
             of and in the course of his employment. The
             Act should be liberally construed in harmony
             with its humane purpose.

Barnett v. D.L. Bromwell, Inc., 6 Va. App. 30, 33-34, 366 S.E.2d

271, 272 (1988) (en banc) (citation omitted).

        Here, the uncontradicted evidence proved that a provision of

claimant's union contract with employer barred him from seeking

outside work for the duration of his employment and that he would

be fired if he obtained other employment.    During a period of

partial disability when employer did not offer claimant

light-duty work, he requested a "stipulation" or waiver of the

provision banning other employment in order to seek work as a

real estate agent.    Employer refused that request.   Employer now

seeks to use claimant's attempt to preserve his employment

status, and his concomitant failure to market his residual

capacity, to bar his claim for temporary total disability

compensation.    We hold, in keeping with the decision of the

commission, that "[a]s a matter of equity, the employer cannot

have it both ways - on the one hand refusing to allow the

claimant to market his [residual] capacity [while maintaining his

employment status], and then denying compensation on the grounds




                                 - 7 -
that he has not marketed." 1

     For these reasons, we hold that, where the employer has a

contractual provision which bars a claimant from working in

outside employment while he remains in that employ, and refuses


     1
      As support for its argument that benefits should have been
denied, the dissent cites prior decisions of the commission. See
Nowlin v. Westvaco Corp., Nos. 170-74-58, 170-74-59 (Workers'
Comp. Comm'n Feb. 13, 1996); Hall v. C.R. Hudgins Plating, Inc.,
70 O.I.C. 237 (1991); Reynolds v. Gust K. Newberg Constr. Co., 70
O.I.C. 236 (1991); Diehl v. Reynolds Metals Co., 67 O.I.C. 188,
191 (1988); Witt v. Kenrose Mfg. Co., 55 O.I.C. 381 (1973).
However, as set out above, no conflict in the evidence exists in
this case, making the dispute legal rather than factual.
Although "the [c]ommission's construction of the Act is entitled
to great weight on appeal," City of Waynesboro Sheriff's Dep't v.
Harter, 1 Va. App. 265, 269, 337 S.E.2d 901, 903 (1985), this
Court is not bound by the commission's legal analysis in this or
prior cases. See Cibula v. Allied Fibers & Plastics, 14 Va. App.
319, 324, 416 S.E.2d 708, 711 (1992), aff'd, 245 Va. 337, 428
S.E.2d 905 (1993).
     In addition, even if the prior decisions of the commission
were legally binding upon this Court, the commission's award of
benefits in this case indicates its belief that those decisions
are factually distinguishable. We agree.
     First, the commission's language in Diehl is dictum because
it found the claimant in that case had an ongoing total
disability and had no residual capacity to market at that time.
     Second, Hall dealt only with the principle that an employee
hoping to be recalled to light duty with her pre-injury employer
has a duty to market her residual capacity in the interim. It
did not indicate that Hall's marketing would have caused her to
forfeit employment status with employer and the possible future
return to a light-duty position with employer.
     Finally, the Nowlin, Reynolds and Witt cases, as stated in
the text of those opinions, all dealt exclusively with benefits
resulting from union membership and their possible forfeiture
upon a claimant's acceptance of other employment. Like Hall,
none of those decisions indicate that the employer had control
over the claimant's loss of employment or possible forfeiture of
benefits. It is undisputed on the record in the instant case
that USAir had such control. Furthermore, the commission found
that, because "employment contracts in Virginia cover both union
and non-union employees, . . . the claimant's union membership is
irrelevant to the issue of his right to compensation."




                               - 8 -
to waive that provision during a period of work-related

disability without providing a legitimate business reason for

that refusal, claimant has no residual capacity and employer may

not assert a "failure to market" defense.

                                                          Affirmed.




                              - 9 -
Fitzpatrick, C.J., dissenting.

     I respectfully dissent and would hold that claimant failed

to establish that he reasonably marketed his residual work

capacity.   One factor to be considered in evaluating the

reasonableness of a claimant's marketing efforts is the nature

and extent of the job search.    See ARA Servs. v. Swift, 22 Va.

App. 202, 206, 468 S.E.2d 682, 684 (1996) (citing National Linen

Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d 31, 34 (1989)).

Claimant may not restrict himself to contacting only his

employer.   See, e.g., Nowlin v. Westvaco Corp., Nos. 170-74-58,

170-74-59 (Workers' Comp. Comm'n Feb. 13, 1996) ("an employee who

is released to light duty work . . . has the obligation to seek

work from other employers in order to demonstrate a reasonable

effort to market [his] residual work capacity"); Hall v. C.R.

Hudgins Plating, Inc., 70 O.I.C. 237 (1991) (claimant failed to

prove reasonable marketing where she had not sought light work

elsewhere because she anticipated being recalled by employer).

In the instant case, claimant merely inquired of his superiors

whether a job within his capacity was available at USAir and made

no effort to contact other employers.

     I agree with the commission's decisions in prior cases

involving similar facts and would hold that claimant's status as

a union member, his seventeen-year history with employer, and the

actions of his employer did not relieve him of the obligation to

market himself to other employers.       See, e.g., Nowlin, Nos.




                                - 10 -
170-74-58, 170-74-59 ("an injured employee cannot limit a job

search because of considerations regarding . . . the effect her

efforts and potential employment might have on union benefits");

Reynolds v. Gust K. Newberg Constr. Co., 70 O.I.C. 236 (1991)

(employee not justified in refusing selective employment because

acceptance would jeopardize his union pension benefits); Diehl v.

Reynolds Metals Co., 67 O.I.C. 188, 191 (1988) (The "Workers'

Compensation Act does not operate in a vacuum and . . .

collective bargaining agreements . . . may be related to exercise

by the parties of rights and duties prescribed under the Act.

Nevertheless, the Act does not in any way define or guarantee the

right of an employee to remain in a particular employment.");

Witt v. Kenrose Mfg. Co., 55 O.I.C. 381 (1973) (employee who

abandoned non-union light duty to protect her union status not

eligible for benefits).   The rationale set out in those cases is

compelling.

     Whether a job is within a claimant's ability has no

relationship to his or her union status, benefits which may

attach thereto, or longevity with an employer.   No language in

the Workers' Compensation Act supplies a deference to a union

employee when marketing his or her residual work capacity.    An

employer is not required to pay compensation to a claimant who is

capable of performing selective employment but who fails to look

for a non-union position.   All employees are required to look

beyond their pre-injury employers if no selective employment is




                              - 11 -
available.   Claimant may not excuse his failure to market

residual work capacity because employer refused to release him

from his contractual obligation.   Claimant's contractual

limitation and the possibility of termination from his pre-injury

employment do not justify his failure to market his residual work

capacity.

     For the foregoing reasons, I would reverse the commission's

decision.




                              - 12 -
