                    COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Annunziata and Overton
Argued at Richmond, Virginia


GEORGIA-PACIFIC CORPORATION
                                       MEMORANDUM OPINION * BY
v.   Record No. 0123-98-1            JUDGE ROSEMARIE ANNUNZIATA
                                          AUGUST 4, 1998
RICKY A. DAVIS


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           Cecil H. Creasey, Jr. (Sands, Anderson,
           Marks & Miller, on brief), for appellant.
           William R. Keown (Beddow, Marley, Trexler &
           Fitzhugh, on brief), for appellee.



     Georgia-Pacific Corporation (employer) appeals the

affirmation of the deputy commissioner's award to Ricky Davis

(claimant) by the Workers' Compensation Commission.    Employer

contends that the deputy commissioner erred in refusing its

request for a continuance, and in awarding continuing temporary

total disability payments.

     Prior to his injury, claimant drove a truck for employer,

and earned an average weekly wage of $384.   He was required to

stop up to ten times per shift and lift a tarpaulin over the bed

of the truck.    On October 25, 1990, claimant sustained a back

injury in an accident while working for the employer.     As a

result of his injury, claimant received various periods of

disability benefits.

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     On May 7, 1996, claimant filed a change in condition

application requesting temporary total disability benefits for

the period of March 24 through 28, 1996.   Employer voluntarily

paid the benefits.   Claimant filed an amendment to his

application on June 18, 1996 requesting temporary total

disability (TTD) benefits from April 19, 1996 through present and

continuing thereafter.   Claimant again amended his application on

August 12, 1996 to include a claim for temporary partial

disability (TPD) benefits from June 8 to present and continuing

thereafter.
     On October 25, 1996, a claims examiner for the Commonwealth

requested employer to submit its position regarding the amended

claims.   Employer replied on December 5 that it had been trying

to obtain information and was awaiting the appointment of new

counsel for Davis.   After receiving the letter from employer, the

claims examiner informed employer and claimant that the

commission was ready to proceed with the hearing upon receipt of

sufficient medical evidence.

     Employer requested the production of documents and

interrogatories on January 20, 1997.   In a letter dated February

13, employer moved to dismiss for failure to comply with

discovery, moved to compel discovery, and requested a

continuance.   Claimant responded that he had only received the

discovery requests on February 14, and opposed the continuance.

On February 19, the deputy commissioner denied the motion to




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dismiss and continuance, but granted the motion to compel

discovery.

     On February 25, 1997, claimant again amended his

application, requesting TTD benefits for the period April 19

through April 23, 1996 and permanent partial disability (PPD)

benefits from April 24 to present and continuing.   Employer

received the February 25th amendment and discovery responses on

February 28th.   Citing prejudice due to the delay in discovery,

employer requested a continuance.    Claimant again amended his

application on March 3, claiming TTD benefits for the period

April 19 through June 2, 1996 and TPD benefits from June 3, 1996

to present and continuing.
     On March 3, 1997, after receiving both employer's request

for continuance and claimant's most recent amendment, the deputy

commissioner denied employer's request for a continuance.   The

deputy commissioner noted that the benefits claimant sought under

the most recent amendment were essentially the same as those

sought in the original May 7, 1996 petition, as amended on June

11, 1996, and August 12, 1996.   The deputy commissioner also

cited employer's delay in beginning discovery as a basis for

denying the continuance.   The hearing took place as scheduled on

March 5, 1997.

     The deputy commissioner found that claimant had made an

adequate effort to market his remaining work capacity, as he had

found adequate employment, although at less than his preinjury




                                 3
wage, and was continuing to look for work at higher wages.    The

deputy commissioner awarded claimant TTD benefits through June 2,

1996, TPD benefits for various periods between June 3, 1996 and

the hearing, based on the wages at each job, and continuing TPD

benefits based on claimant's current employment.

        On review, the commission held that the deputy commissioner

erred in finding that employer had delayed in beginning

discovery, and abused his discretion in failing to grant a

continuance.    The commission held, however, that employer was not

prejudiced by the failure to grant a continuance because employer

knew the substance of the claim since June 1996, claimant

testified credibly to his efforts at finding employment, and

claimant introduced objective verification of his employment.

The commission affirmed the deputy commissioner's finding that

claimant had continuing disability related to his compensable

injury.    The commission also affirmed the deputy commissioner's

finding that claimant had sufficiently marketed his residual work

capacity, and further found that claimant's progression of

employment showed that he had fully marketed his remaining

capacity although he had not yet found work at his preinjury

wage.
                                  I.

                              Due Process

        Employer asserts that by denying its request for a

continuance, the deputy commissioner violated its right to due




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process.
           "An elementary and fundamental requirement of
           due process in any proceeding which is to be
           accorded finality is notice reasonably
           calculated, under all the circumstances, to
           apprise interested parties of the pendency of
           the action and afford them an opportunity to
           present their objection. The notice must be
           of such nature as reasonably to convey the
           required information, . . . and it must
           afford a reasonable time for those interested
           to make their appearance, . . . [b]ut if with
           due regard for the practicalities and
           peculiarities of the case these conditions
           are reasonably met, the constitutional
           requirements are satisfied."


Oak Hill Nursing Home, Inc. v. Back, 221 Va. 411, 417, 270 S.E.2d

723, 726 (1980) (quoting Mullane v. Central Hanover Trust Co.,

339 U.S. 306, 314-15 (1950)).   "'Procedural due process has been

said to require that before an individual is deprived of any

significant property interest he be granted an opportunity, at a

meaningful time in a meaningful manner, for a hearing appropriate

to the nature of the case.'"    Williams v. Virginia Elec. & Power

Co., 18 Va. App. 569, 576-77, 445 S.E.2d 693, 698 (quoting James
v. Arlington Bd. of Supervisors, 226 Va. 284, 289-90, 307 S.E.2d

900, 903 (1983)).   While the requirements in administrative

proceedings may be more relaxed, "the commission must use

procedures that 'afford the parties minimal due process

safeguards.'"   WLR Foods, Inc. v. Cardosa, 26 Va. App. 220, 227,

494 S.E.2d 147, 150 (1997) (quoting Sergio's Pizza v. Soncini, 1

Va. App. 370, 376, 339 S.E.2d 204, 207 (1986)).

     On January 20, 1997, employer propounded discovery requests



                                  5
to claimant; claimant did not respond by the February 10 due

date.    The commissioner granted a motion to compel discovery on

February 19, 1997, and ordered that claimant respond within ten

days.    Claimant filed his discovery responses on February 28,

1997.    Thus, employer had the discovery responses two working

days prior to the March 5, 1997 hearing.    The commission held

that the deputy commissioner abused his discretion in failing to

grant a continuance to allow employer to more fully examine the

responses.
        A limited period in which to examine the responses to

discovery does not, in itself, constitute a violation of due

process.    In the context of an amendment of a claim at a hearing

or on review, employer must show that it was prejudiced by the

commission's action in order to show a violation of due process.

 See, e.g., Cardosa, 26 Va. App. at 227-28, 494 S.E.2d at 150-51

(citing cases).    A litigant must also demonstrate prejudice to

establish a violation of due process from the denial of a

continuance.     See Doe v. Doe, 15 Va. App. 242, 245-46, 421 S.E.2d

913, 915-16 (1992) (finding prejudice to party's due process

rights from failure to grant a continuance); Moreno v.

Commonwealth, 10 Va. App. 408, 419, 392 S.E.2d 836, 843-44 (1990)

(holding that failure to grant a longer continuance following

late discovery disclosure did not violate defendant's due process

rights because asserted prejudice was "conjectural").    We

conclude, therefore, that employer must show prejudice from the




                                   6
deputy commissioner's denial of the continuance in order to

demonstrate its due process rights were violated.

     Although employer propounds several scenarios evincing

prejudice, the record does not support its assertions.     Employer

made no attempt to demonstrate after the hearing that, if the

deputy commissioner had granted a continuance, the delay would

have yielded additional evidence.      Employer does not allege that

additional evidence existed, but merely states that it would have

had additional time to look for evidence if the deputy

commissioner had granted a continuance.     Employer's

unsubstantiated, hypothetical scenarios fail to demonstrate that

it was prejudiced by the deputy commissioner's failure to grant a

continuance.   We therefore hold that the deputy commissioner did

not deny appellant due process, and affirm the decision of the

commission on this issue.
                                 II.

                       Continuing TPD Benefits

     Employer contends that the commission erred in affirming the

deputy commissioner's award of continuing TPD benefits.

Specifically, employer argues that the commission erred in

affirming the deputy commissioner's findings that claimant

possessed a continuing disability and that claimant had fully

marketed his remaining work capacity.     We view the evidence in

the light most favorable to claimant, the party prevailing in the

commission.    See R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App.




                                  7
211, 212, 390 S.E.2d 788, 788 (1990) (citing Crisp v. Brown's

Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916,

916 (1986)).

     The standard of review applicable to the commission's

findings of fact was succinctly stated in Ford Motor Co. v. Hunt,

26 Va. App. 231, 236, 494 S.E.2d 152, 154-55 (1997) (quoting

Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d

507, 510-11 (1983)):
          "We do not retry the facts before the
          Commission nor do we review the weight,
          preponderance of the evidence, or the
          credibility of witnesses. If there is
          evidence or reasonable inference that can be
          drawn from the evidence to support the
          Commission's findings, they will not be
          disturbed by this Court on appeal, even
          though there is evidence in the record to
          support contrary findings of fact."

The commission's interpretation of medical evidence, as well as

the commission's finding of reasonable marketing of remaining

work capacity, are reviewed under this standard.   Ford, 26 Va.

App. at 236, 239, 494 S.E.2d at 155-56 (citing Ohio Valley
Constr. Co. v. Jackson, 230 Va. 56, 59, 334 S.E.2d 554, 556

(1985)).

                                A.

                      Continuing Disability

     Employer argues that the evidence does not support the

commission's finding of continuing disability.   We hold that the

evidence supports the commission's finding that claimant suffered

from a continuing disability.



                                8
        On March 3, 1996, claimant's physician, Dr. Mark deBlois,

noted that claimant "is capable of working, but the question is

going to be at what level he can actually function [because] [i]t

sounds like heavy duty might not be possible."    On April 23,

1996, deBlois concluded that "at this point we've tried to get

[claimant] back to work and I don't think he can do it."     He

continued, "I think he [is] capable of a light work category, but

he won't be able to drive significant distances."    Claimant's

last visit to deBlois occurred on September 12, 1996.    In his

notes of the visit, deBlois stated that claimant continued to

have trouble driving, and there is no new injury causing the back

pain.    DeBlois recommended that employer retrain claimant for

another position, from which the commission could reasonably

infer that claimant was permanently unable to perform his driving

duties.    Approximately one week before the hearing, in a letter

dated February 27, 1997, deBlois stated that "[b]ased on

[claimant's] history and physical exam, I would rate him as a

Category 2 Permanent/Partial Disability . . . which would equate

to a 5 percent permanent/partial disability."    This evidence

supports the finding of the commission.
        Employer's arguments that the commission applied a

presumption of continuing disability and that the commission

excused claimant from his burden of proof are without merit.      The

opinions of the deputy commissioner and commission contain no

such presumption, and the evidence supports the commission's




                                   9
decision on the facts without the employment of any presumption.

Similarly, employer's argument under Massie v. Firmstone, 134

Va. 450, 462, 114 S.E. 652, 655-56 (1922), is misplaced.   The

evidence fully supports the decision of the commission, and the

commission did not impermissibly allow claimant to rise above his

own testimony.




                               10
                                B.

              Marketing of Remaining Work Capacity

     Employer contends that claimant unreasonably limited his job

search, and failed to prove that he was earning the wages he was

capable of earning.   We disagree, and hold that the commission's

finding that claimant had reasonably marketed his remaining work

capacity is supported by the evidence.

     "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 his remaining capacity to work."

 Herbert Bros. v. Jenkins, 14 Va. App. 715, 717, 419 S.E.2d 283,

284 (1992) (citing, inter alia, National Linen Serv. v. McGuinn,

8 Va. App. 267, 269, 380 S.E.2d 31, 33 (1989)).    "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).      We have

explained relevant factors in the determination of whether a

marketing effort is reasonable:
          (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, 8 Va. App. at 272, 380 S.E.2d at 34.       "[T]he mere

fact that the employee obtained a new job, where the pay is



                                11
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."     Id. at 268, 380 S.E.2d

at 32.

        The only training claimant acquired beyond high school was

attending Virginia Tractor Trailer Training School, and he can no

longer use that training because of his back injury.    Since

employer terminated claimant, claimant has interviewed for

seventeen positions.    Following his tenure with employer as a

truck driver, claimant held jobs with three different

organizations.    Claimant worked as a stock clerk at Food Lion

between June 3 and June 15, 1996, at $5.50 per hour.    Claimant

worked for TCB Grounds Management between June 17 and November 1,

1996 at $5.50-$5.75 per hour.    Claimant began to work for his

current employer, Chesterfield County, as a grounds maintenance

worker on November 4, 1996, at $6.59 per hour.    On February 8,

1997, claimant began working as an equipment operator at $8.01

per hour.
        Each of claimant's positions has paid a progressively higher

wage.    At claimant's current place of employment, he has received

a promotion, and is working at his highest wage level since

working for employer.    The evidence supports the finding of the

commission that appellant reasonably marketed his remaining work

capacity.
                                                Affirmed.




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