                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Russell, AtLee and Malveaux
            Argued at Norfolk, Virginia
PUBLISHED




            DOLLAR TREE STORES, INC. AND
             ARCH INSURANCE COMPANY
                                                                                OPINION BY
            v.     Record No. 1943-17-1                                JUDGE MARY BENNETT MALVEAUX
                                                                                JUNE 5, 2018
            KATHLEEN TEFFT


                        FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                           Audrey Marcello (Matthew J. Moynihan; Taylor Walker, P.C., on
                           brief), for appellants.

                           Philip J. Geib (Philip J. Geib, P.C., on brief), for appellee.


                   Dollar Tree Stores, Inc. (“employer”) appeals a decision of the Workers’ Compensation

            Commission (“the Commission”) awarding benefits to Kathleen Tefft (“claimant”). On appeal,

            employer argues that the Commission erred in finding that the composition of the review panel did

            not violate Code §§ 65.2-200(D) and -705(D). Employer further contends that the Commission

            erred in finding that claimant adequately marketed her residual work capacity. For the following

            reasons, we affirm the decision of the Commission.

                                                     I. BACKGROUND

                   On appeal, “[w]e view the evidence in the light most favorable to the prevailing party

            below, and ‘[t]he fact that contrary evidence may be found in the record is of no consequence if

            credible evidence supports the commission’s finding.’” Va. Polytechnic Inst. v. Posada, 47

            Va. App. 150, 158, 622 S.E.2d 762, 766 (2005) (second alteration in original) (quoting Manassas

            Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991)).
       Claimant was employed as an assistant freight manager at one of employer’s stores. On

March 31, 2015, claimant was unloading a truck when the driver of the truck “slammed . . .

down” fifteen or twenty cases of freight on her. Claimant’s arms were “yanked on both

shoulders.” After the incident, claimant experienced pain in her neck, shoulders, and arms.

       On April 27, 2015, claimant was treated by Dr. Timothy Budorick, who placed her on

work restrictions, including no unloading of trucks or lifting over ten pounds. On May 21, 2015,

claimant was treated by Dr. Lawrence Donato, who imposed the same weight lifting restrictions.

Dr. Donato also prohibited any overhead lifting. On July 21, 2015, Dr. Donato performed

surgery on claimant’s right shoulder. After her surgery, claimant was released to light-duty work

on September 21, 2015, under certain work restrictions: no overhead lifting, no repetitive

activity, no lifting of more than seven pounds, and sedentary work only. Following a November

18, 2015 appointment, Dr. Donato continued these same restrictions with a modified limit of

lifting no more than five pounds. On December 17, 2015, he continued the same restrictions. At

no point was employer able to accommodate claimant’s restrictions.

       Claimant started actively looking for a job within her restrictions on November 13, 2015.

Claimant’s educational background consisted of a high school education. She had previously

worked as an assistant manager of a fast-food restaurant. Claimant initially looked for jobs from

postings on the “Virginia [C]ommission site.”1 She could not find any jobs on that website so

she “started just going to random places” online. The majority of her search was online. She

applied for customer service and loss prevention jobs because they did not involve lifting, and

were more just “walk[ing] around.”




       1
       The deputy commissioner interpreted this as a reference to the Virginia Employment
Commission’s website.
                                          -2-
       From November 2015 through the beginning of June 2016, claimant primarily applied for

jobs with the Sears Corporation, including jobs at both Sears and K-Mart stores. Claimant

testified that during this period she was told she had to apply for five jobs a week, and when

there were not that many jobs available with Sears, she applied to other employers to get to five

jobs. During this time, claimant applied to about twenty different employers other than Sears,

with the majority of these applications submitted during the first two months of claimant’s job

search. The rest of the time, claimant applied for five jobs a week with Sears. Those jobs had a

variety of position titles, and all had individual position numbers. Claimant testified that she did

not apply to different employers during this time because, while all of the jobs were with Sears,

she was applying to work in different stores. Further, because of her restrictions, there were not

many suitable jobs for her. In December 2015, claimant went to one interview for a loss

prevention job, but did not hear anything following the interview.

       From the end of June through October 2016, claimant applied for five jobs a week

exclusively at SuperValu stores.2 The record reflects that these jobs had a variety of position

titles and that all had individual position numbers. Claimant testified that these jobs were located

in different SuperValu stores, and some were in Starbucks locations inside the stores. Claimant

never received an interview for any SuperValu position.

       On September 11, 2015, claimant filed a claim seeking medical benefits and temporary

total disability benefits beginning April 27, 2015 and continuing. The parties stipulated that

claimant was entitled to a medical award for an injury to her right shoulder and an award of

temporary total disability benefits for the period of July 21, 2015 through September 21, 2015.




       2
        Claimant testified that these applications were for Farm Fresh stores, which are owned
by SuperValu.
                                               -3-
Employer defended on several grounds, one of which was that claimant failed to market her

residual work capacity.

       On January 4, 2017, the deputy commissioner issued an opinion awarding claimant

temporary total disability benefits for the periods of July 21, 2015 through September 21, 2015

and November 13, 2015 and continuing. The deputy commissioner found that claimant had

proven that she suffered compensable injuries to both shoulders and her cervical spine, in

addition to the right shoulder injury stipulated by employer. However, the deputy commissioner

found that claimant only marketed her residual work capacity from November 13, 2015 on, and

thus awarded her temporary total disability benefits only for that period of time in addition to the

period of time stipulated by the parties.

       Employer requested review by the full Commission. On November 1, 2017, the

Commission issued an opinion affirming the decision of the deputy commissioner. The

Commission found that claimant’s marketing efforts were “reasonable and demonstrated her

good faith,” based upon its findings that claimant’s work restrictions were “significant,” that her

high school education and lack of office work experience would make finding a job within her

restrictions difficult, and that she had applied for “distinct jobs at specific places,” including a

“range of the same type of positions” at Sears and SuperValu. One commissioner dissented,

finding that claimant failed to reasonably market her residual work capacity because the vast

majority of her job search involved applying for five jobs a week with two employers, allowing

her “to accumulate the number of contacts requisite to secure her entitlement to disability while

exerting the least necessary effort.”

       The review panel consisted of Commissioners Marshall and Newman, and Chief Deputy

Commissioner Szablewicz, who participated on the panel by appointment because Commissioner

Rapaport had recused himself.

                                                 -4-
        Employer filed a motion for reconsideration on November 13, 2017, arguing that the

Commission did not follow Code §§ 65.2-200(D) and -705(D) in appointing Chief Deputy

Commissioner Szablewicz to participate in the panel. On November 30, 2017, the Commission

denied the motion for reconsideration, holding that the review panel as constituted did not

contravene Code § 65.2-200(D).

                                           II. ANALYSIS

                                  A. Composition of Review Panel

        On appeal, employer asserts that the Commission erred in finding that the composition of

the review panel did not contravene the requirements of Code §§ 65.2-200(D) and -705(D).

        “An issue of statutory interpretation is a pure question of law,” and thus, we must

conduct a de novo review. Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104,

639 S.E.2d 174, 178 (2007). This Court is “required to construe the law as it is written[,] and an

erroneous construction by [the Commission] cannot be permitted to override the clear mandates

of [the] statute.” Danville Radiologists, Inc. v. Perkins, 22 Va. App. 454, 458, 470 S.E.2d 602,

604 (1996) (quoting Pavlicek v. Jerabek, Inc., 21 Va. App. 50, 58, 461 S.E.2d 424, 428 (1995)).

“Under basic rules of statutory construction, we examine a statute in its entirety, rather than by

isolating particular words or phrases.” Peacock v. Browning Ferris, Inc., 38 Va. App. 241, 249,

563 S.E.2d 368, 372 (2002). “When the language of a statute is unambiguous, we are bound by

the plain meaning of that language.” Conyers, 273 Va. at 104, 639 S.E.2d at 178. “[W]e must

give effect to the legislature’s intention as expressed by the language used unless a literal

interpretation of the language would result in a manifest absurdity.” Id.

        “The commission is a creature of statute and derives its authority from the General

Assembly.” Layne v. Crist Elec. Contr., Inc., 62 Va. App. 632, 637, 751 S.E.2d 679, 682 (2013).

“[A]s such it is a matter of legislative prerogative as to the organization and authority of the . . .


                                                 -5-
Commission.” Id. (alteration in original) (quoting Kim v. Sportswear, 10 Va. App. 460, 471, 393

S.E.2d 418, 424 (1990)).

       Code § 65.2-200 formulates the Commission. It provides that the Commission “shall

consist of three members” elected by the General Assembly. Code § 65.2-200(B). In addition,

Code § 65.2-200(D) provides that

              [n]ot more than one member of the Commission shall be a person
              who on account of his previous vocation, employment or affiliation
              shall be classified as a representative of employers, and not more
              than one such appointee shall be a person who on account of his
              previous vocation, employment or affiliation shall be classed as a
              representative of employees.

       Code § 65.2-705 outlines the procedure for reviewing an award. It directs the full

Commission to hear appeals. Code § 65.2-705(A). Further, Code § 65.2-705(D) mandates that

              [w]hen a vacancy on the Commission exists, or when one or more
              members of the Commission are absent or are prohibited from
              sitting with the full Commission to hear a review, the Chairman
              may appoint one or more deputy commissioners or recall one or
              more retired members of the Commission to participate in the
              review. The retired member or members recalled shall be the
              member or members who occupied the seat for which such
              member or members are being recalled, unless the parties
              otherwise consent.

       Employer contends that these statutes are clear and unambiguous, and “require that the

members of the Commission, including any substitute members due to vacancy, be composed of

not more or less than one representative of employers and employees on a review panel.” In this

case, employer asserts that this mandate was violated by Chief Deputy Commissioner

Szablewicz’s presence on the review panel. Employer argues that Chief Deputy Commissioner

Szablewicz was an improper substitute because his past experience classified him as an




                                              -6-
employee representative,3 when another review panel member, Commissioner Marshall, was also

an employee representative as defined by Code § 65.2-200(D). Thus, employer contends, there

were two employee representatives on the review panel, in violation of the statutory

requirements.

       We agree with appellant’s first contention that the language of the statutes at hand is

unambiguous. However, based upon the plain language of Code §§ 65.2-200 and -705, we reject

appellant’s construction of the statutes and hold that the prior affiliation of a deputy

commissioner appointed to serve on a review panel is irrelevant as to whether the panel was

properly constituted.

       We first examine Code § 65.2-705. As noted above, this code section provides, in

pertinent part, that if a member of the Commission is absent from sitting with the full

Commission to hear a review, “the Chairman may appoint one or more deputy commissioners or

recall one or more retired members of the Commission to participate in the review.” Code

§ 65.2-705(D) (emphasis added). The word “or” is a disjunctive that provides an alternative.

See Rose v. Commonwealth, 53 Va. App. 505, 514, 673 S.E.2d 489, 493 (2009) (“[T]he use of

the disjunctive word ‘or,’ rather than the conjunctive ‘and,’ signifies the availability of

alternative choices.” (quoting Lewis v. Commonwealth, 267 Va. 302, 314-15, 593 S.E.2d 220,

227 (2004))). As such, the statute provides that the Chairman may appoint either a deputy

commissioner or, in the alternative, a retired member of the Commission, to serve on a review



       3
          No evidence regarding Chief Deputy Commissioner Szablewicz’s previous vocation,
employment or affiliation was presented to the Commission below. On appeal, employer asks us
to take judicial notice, pursuant to Code § 8.01-388, of the Commission’s 2016 Annual Report,
which describes Chief Deputy Commissioner Szablewicz’s prior experience as working in the
private practice of law primarily representing injured workers. As we find that it is unnecessary,
for purposes of this appeal, to determine the nature of Chief Deputy Commissioner Szablewicz’s
prior experience, we do not address whether it would be proper for us to take judicial notice of
the Commission’s 2016 Annual Report.
                                                -7-
panel if a member of the Commission is absent. The next sentence of the statute reads: “[t]he

retired member or members recalled shall be the member or members who occupied the seat for

which such member or members are being recalled, unless the parties otherwise consent.” Code

§ 65.2-705(D). Appellant construes this language to mean that the deputy commissioner is a

“member” as referenced in this sentence, and thus must have the same classification as the

commissioner they are replacing on the review panel. Clearly the term “member” in the statute

exclusively references “the retired member or members recalled”—i.e., retired members of the

Commission that can participate in review panels by designation of the Chairman. Under the

plain language of Code § 65.2-705(D), the statute only requires that when a retired member of

the Commission is recalled to serve on a review panel, they must occupy “the seat”—i.e., be of

the same classification under Code § 65.2-200—as the Commission member they are replacing.

As this portion of the statute plainly refers only to “retired members” of the Commission, it does

not compel the conclusion that a deputy commissioner, serving by appointment on a review

panel, must be of a certain affiliation.

        A review of Code § 65.2-200(D) further supports this conclusion. Code § 65.2-200(D)

provides that “[n]ot more than one member of the Commission” shall be an individual with an

employer representation background or an individual with an employee representation

background. This code section refers solely to the composition of the Commission itself; its

plain language provides no commentary on any prior affiliation requirement for deputy

commissioners appointed to a review panel under Code § 65.2-705(D). This reading of the

statute is supported by other sections of the Virginia Workers’ Compensation Act, as the Act

clearly distinguishes members of the Commission from deputy commissioners. See Code

§ 65.2-201(B) (providing that one of the powers of the Commission is the ability to appoint

deputies); Code § 65.2-203(A) (outlining the duties and powers of deputy commissioners,

                                               -8-
including the ability to subpoena witnesses, administer oaths, take testimony, decide the issues in

a summary manner, and make award decisions, as well as “exercise other powers and perform

any duties of the Commission delegated to them by the Commission”).

       “We ‘are not authorized to amend, alter or extend the [Workers’ Compensation] Act’s

provisions beyond their obvious meaning.’” Peacock, 38 Va. App. at 248-49, 563 S.E.2d at 372

(alteration in original) (quoting Cross v. Newport News Shipbuilding and Dry Dock Co., 21

Va. App. 530, 533, 465 S.E.2d 598, 599 (1996)). Here, the language of both Code

§ 65.2-705(D) and Code § 65.2-200(D) is clear and unambiguous. If the General Assembly had

intended for deputy commissioners appointed to sit on review panels to have the same prior

experience as the Commission members they were replacing, it could do so, but clearly has not.

       In the instant case, a commissioner was absent due to his recusal. The Chairman of the

Commission, pursuant to Code § 65.2-705(D), properly appointed a deputy commissioner to

participate in the review panel in light of the commissioner’s absence. The deputy commissioner

was not and had never been a “retired member” of the Commission. Therefore, his background

as either an employee or employer representative was irrelevant, and the Commission did not err

in finding that the review panel was properly constituted when it issued the opinion in this case.

                              B. Duty to Market Residual Capacity

       On appeal, appellant further argues that the Commission erred in finding that the claimant

adequately marketed her residual work capacity.

       In order to establish entitlement to temporary disability benefits, a partially disabled

claimant “must prove that he made a reasonable effort to market his residual work capacity.”

Wall Street Deli, Inc. v. O’Brien, 32 Va. App. 217, 220, 527 S.E.2d 451, 453 (2000). “The

determination of whether a partially disabled employee has adequately marketed his residual

work capacity lies within the fact finding judgment of the [C]ommission, and its decision on that

                                                -9-
question, if supported by credible evidence, will not be disturbed on appeal.” Id. at 220-21, 527

S.E.2d at 453. “In determining whether a claimant has made a reasonable effort to market his

remaining work capacity, we view the evidence in the light most favorable to . . . the prevailing

party before the commission.” Nat’l Linen Serv. v. McGuinn, 8 Va. App. 267, 270, 380 S.E.2d

31, 33 (1989).

       “There are no fixed guidelines for determining what constitutes a ‘reasonable effort’ by

an employee to market residual work capacity.” Ford Motor Co. v. Favinger, 275 Va. 83, 89,

654 S.E.2d 575, 579 (2008) (quoting Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459,

467, 359 S.E.2d 98, 102 (1987)). However, the Commission considers the following factors:

                 (1) the nature and extent of [the] employee’s disability; (2) the
                 employee’s training, age, experience, and education; (3) the nature
                 and extent of [the] 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 [the] employee’s capacity to find
                 suitable employment.

Nat’l Linen Serv., 8 Va. App. at 272, 380 S.E.2d at 34 (footnotes omitted). “In sum, an

employee ‘must present some evidence that he [has] engaged in a good[-]faith effort to obtain

work within the tolerance of his physical condition and has failed to find a job, either due to his

injury or because no such work was available in the community.’” Favinger, 275 Va. at 90, 654

S.E.2d at 579 (quoting Nat’l Linen Serv., 8 Va. App. at 271, 380 S.E.2d at 34).

       In the instant case, the Commission found that, while “[i]t may have been wise [for

claimant] to expand her job search,” her marketing efforts were reasonable. In making this

determination, the Commission found that claimant’s work restrictions were “significant.” In

addition, it found that her high school education and lack of office work experience would make

finding a job within her restrictions difficult. Further, in reviewing claimant’s job search history,

the Commission found that claimant applied for “distinct jobs at specific places,” including a

                                                - 10 -
“range of the same type of positions” at Sears and SuperValu. These findings are supported by

credible evidence in the record, including claimant’s testimony and list of job contacts.

       Nonetheless, employer contends that claimant’s job search record demonstrates that she

did not engage in a reasonable effort to market her residual work capacity because two

employers represented over 90% of her employment applications. We acknowledge, as did the

Commission below, that it may have been prudent for claimant to expand her job search to other

potential employers. However, we do not find that the nature of claimant’s search is itself

enough to render her marketing efforts unreasonable. Our case law only demands that a

claimant’s marketing efforts be reasonable, not perfect or successful. Here, claimant had a

limited educational background, significant work restrictions, and past work experience that best

suited her for positions precluded by those restrictions. The record also demonstrates that

claimant applied for a variety of positions in different Sears and SuperValu locations. These

factors must be considered along with the fact that the majority of claimant’s applications were

with only two employers; viewed in total, the Commission did not err in finding claimant’s

marketing efforts reasonable.

       In addition, employer contends that claimant’s testimony that during the period when she

primarily applied with Sears she only applied to other employers “when it wasn’t enough –

because I was told I had to do five,” demonstrated that her only interest was to find employers

with five open positions, not those where she might have a reasonable expectation of obtaining

employment. We find this argument without merit because credible evidence in the record

supports the Commission’s finding to the contrary—that claimant’s job search, in light of all the

circumstances, demonstrated a good-faith effort to market her residual work capacity. While

claimant did apply only for five jobs a week, primarily with Sears and then SuperValu, she

applied for a variety of distinct positions within these two employers that could accommodate

                                               - 11 -
her work restrictions. She testified that because of her restrictions, there were not many suitable

jobs available. The Commission, as fact finder, reasonably found that claimant’s job search was

in good faith, and this Court cannot say on appeal that this determination was plainly wrong.

       Here, credible evidence in the record supports the finding that claimant’s marketing was

reasonable, in light of claimant’s education and experience, as well as the nature of her work

restrictions. Thus, we hold that the Commission did not err in making this determination.

                                       III. CONCLUSION

       We hold that the Commission did not err in finding that the composition of the review

panel did not contravene the statutory requirements. Further, there was credible evidence

supporting the Commission’s determination that claimant reasonably marketed her residual work

capacity. Consequently, we affirm the decision of the full Commission.

                                                                                          Affirmed.




                                               - 12 -
