Opinion
Record No. 1770-93-3
Decided: July 19, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
James B. Feinman (James A. Allen; James B. Feinman Associates, on briefs), for appellant.
William C. Walker (Peter C. Manson, Jr.; Taylor Walker, on brief), for appellees.
Present: Judges Coleman, Koontz and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Marvin E. Myrick (Myrick) appeals a decision of the Workers' Compensation Commission (commission) suspending his compensation for a work-related back injury. Myrick contends that the commission erred in finding that: (1) he refused to participate in vocational rehabilitation; (2) his subsequent efforts did not cure that failure; (3) he failed to market his remaining work capacity; and (4) his employer and its insurance carrier were not estopped from asserting his failure to market his remaining work capacity. For the reasons that follow, we affirm the commission's findings and its decision denying Myrick further benefits.
I. FACTUAL BACKGROUND
Myrick suffered a work-related back injury on August 6, 1990. The record indicates that Myrick's employer, Central Telephone of Virginia (Central Telephone) and its insurance carrier voluntarily paid compensation to Myrick from the date of the accident through the week ending September 27, 1992. Central Telephone discontinued paying compensation after that date, alleging that Myrick had refused to cooperate with vocational rehabilitation and had failed to market his remaining work capacity by removing himself from the labor market. Central Telephone's change in condition application to the commission to terminate Myrick's benefits was rejected because there had been no prior award by the commission.
At a hearing before a deputy commissioner held February 9, 1993, the parties stipulated the compensability of the accident and agreed that the voluntary payments made from the time of the accident to the date of termination would be awarded by the commission for record purposes. The deputy commissioner found that Myrick had failed to submit a memorandum of agreement prepared by Central Telephone and that Myrick had not sufficiently cooperated with the rehabilitation counselor in seeking alternative employment and had not marketed his remaining work capacity on his own. Accordingly, the deputy commissioner terminated Myrick's eligibility for wage loss benefits "unless and until [Myrick] cooperates in his own vocational rehabilitation, adequately markets, and files a claim to that effect with the commission."
Myrick sought a review of the deputy commissioner's findings. At that review, he contended that Central Telephone was estopped from asserting the defense of failure to market his remaining work capacity, relying on National Linen Service v. McGuinn, 5 Va. App. 265, 362 S.E.2d 187 (1987) (en banc) [hereinafter McGuinn I]. The commission rejected Myrick's claim of the ground that in McGuinn I the employer failed to file a memorandum of agreement, whereas here it was the employee who had failed to submit the memorandum after it had been prepared by the employer.
The commission found that Myrick had completed vocational training at the Durham Technical School and obtained a real estate salesman's license in December, 1991. Myrick claimed that he received only one offer of employment as a salesman and that the offer was contingent on his receiving additional training which Central Telephone's insurance carrier would not provide. Myrick returned to Durham Technical School for additional classes and after three attempts obtained his real estate broker's license in July, 1992. All of this education was undertaken at Myrick's personal expense.
The parties agree that Myrick's medical condition does not enable him to return to his former employment. In November, 1991, it was determined that Myrick could return to light duty work that did not require excessive bending. Central Telephone's insurance carrier engaged a rehabilitation counselor to assist Myrick in finding work. In July, 1992, the counselor provided Myrick with seven leads for employment in the real estate field. Myrick later indicated that he had followed-up on only one of these leads.
In August, 1992 the counselor provided Myrick with additional job leads. Shortly thereafter, the counselor was removed from the case by Central Telephone's insurance carrier and did not know whether Myrick followed up on these leads.
Myrick contended that the job leads were impractical because they involved travel of at least ninety miles round-trip from his home and the insurance carrier refused to pay mileage. The commission found that at the time the leads were provided, Myrick was living within thirty miles of the potential employment locations and that the mileage expense was not a factor in limiting his participation in his vocational rehabilitation. Myrick further contended that the jobs were not suitable because they offered a low hourly wage.
Although Myrick claimed that he pursued five of seven leads provided by the counselor in August, 1992, the commission stated that "[it was] not willing to make a finding from these contacts that [Myrick] has made a reasonable effort to market his remaining work capacity." Moreover, the commission found that this was the central issue of the case. Noting that failure to participate in vocational rehabilitation may be "intertwined" with the failure to market remaining work capacity, the commission found that Myrick's failure to utilize available resources to actively seek practical employment opportunities barred his receiving further compensation for his incapacity.
II. REFUSAL OF VOCATIONAL REHABILITATION AND EFFORTS TO CURE
Myrick first contends that the commission erred in finding that he unreasonably refused to participate in vocational rehabilitation by failing to attend job interviews arranged by the employer and that his subsequent participation in a limited number of employer-arranged interviews failed to cure that refusal. A claimant's unjustified refusal to attend an employment interview is grounds for suspension of benefits. "Whether an employee is justified in refusing to cooperate with the efforts of an employer [to assist him in securing employment] is a factual finding." United Parcel Service v. Godwin, 14 Va. App. 764, 767, 418 S.E.2d 910, 912 (1992).
"Factual findings of the commission are binding on appeal. However, if no credible evidence exists in support of a factual finding, the issue of sufficiency of the evidence is one of law for this Court to decide." Spruill v. C.W. Wright Constr. Co., 8 Va. App. 330, 333, 381 S.E.2d 359, 360 (1989). A careful reading of the commission's opinion reveals that the brief discussion of vocational rehabilitation is not the basis of the denial of benefits. Rather, the commission viewed these activities as a factor in determining whether Myrick had reasonably attempted to market his remaining work capacity. Moreover, we cannot say that the record is devoid of credible evidence to support the commission's findings concerning Myrick's failure to cooperate adequately with the rehabilitation counselor and her attempts to secure employment interviews for Myrick. Accordingly, we affirm the commission's findings concerning Myrick's failure to participate in vocational rehabilitation.
Relying on Godwin, Myrick further contends that the vocational rehabilitation efforts made by the carrier in his case were inadequate, justifying his limited cooperation. In Godwin, the employer appealed the commission's order directing it to provide vocational retraining for the claimant in order to improve his chances of finding employment in the same wage range as his pre-injury occupation. Godwin, 14 Va. App. at 768, 418 S.E.2d at 913. Here, the employer was not subject to such an order at the time it voluntarily provided Myrick with vocational assistance. Accordingly, the employer's efforts exceeded, rather than fell below, the duty imposed upon it.
III. FAILURE TO MARKET REMAINING WORK CAPACITY
The commission's principal finding, and the basis upon which it denied Myrick additional disability benefits, was that Myrick failed to make "a reasonable effort to market his remaining work capacity." In general, an employee who has reached maximum medical improvement and remains partially disabled must make a reasonable effort to market his remaining capacity to work in order to continue receiving workers' compensation benefits. National Linen Service v. McGuinn, 8 Va. App. 267, 269, 380 S.E.2d 31, 33 (1989) [hereinafter McGuinn II]. A disabled employee with residual work capacity who claims entitlement to benefits for total work incapacity must prove that he has made a reasonable attempt to procure work, but has been unable to secure a position compatible with his ability. Washington Metropolitan Area Transit Authority v. Harrison, 228 Va. 598, 601, 324 S.E.2d 654, 655 (1985); Greif Companies v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318 (1993). Accordingly, the burden was on Myrick to show that he had made reasonable marketing efforts. What constitutes a reasonable marketing effort depends upon the facts and circumstances of each case. Great Atlantic Pacific Tea Co. v. Bateman, 4 Va. App. 459, 467, 359 S.E.2d 98, 102 (1987).
Myrick contends that the commission should have considered his disability, training, age, experience, and education, rather than looking solely to his efforts to secure employment, McGuinn II, 8 Va. App. at 272, 380 S.E.2d at 34, and that its failure to do so was error. This contention is not supported by the record. To the contrary, a fair reading of the commission's opinion in light of the whole record shows that the commission measured Myrick's efforts to find employment against his age, level of education, "limited transferable skills," and his ability to "perform light to medium work." Accordingly, under the deferential standard of review, Spruill, 8 Va. App. at 333, 381 S.E.2d at 360, we cannot say that the commission failed to consider the appropriate factors in its review of Myrick's efforts to market his remaining work capacity.
The commission determined from its review of Myrick's efforts to secure employment suitable to his remaining work capacity that Myrick selected an area of employment, and, to his credit, actively pursued a course of education and certification which would allow him to begin a career in that field. However, having so prepared himself, Myrick then took minimal steps to establish that career. Moreover, the efforts he did make were concentrated solely in that field, to the exclusion of seeking alternative forms of employment compatible with his abilities and limitations. Although a claimant is not required to pursue every conceivable avenue of employment in an effort to market his remaining work capacity, a claimant cannot unreasonably limit those efforts by pursuing a fixed and narrow or unattainable employment goal.
In Bateman, we were invited to "fix guidelines to aid in making a determination as to what constitutes a 'reasonable effort' to market 'remaining work capacity.' " 4 Va. App. at 467, 359 S.E.2d at 102. We declined to do so because of the multitude of factors involved and left that determination to be made upon the facts and circumstances of each particular case. In subsequent cases we have granted deference to the commission in its determination of the reasonableness of a claimant's efforts to market his remaining work capacity where there is adequate support in the record for that determination. See, e.g., Sipe, 16 Va. App. at 716, 434 S.E.2d at 318.
Here, the record reflects that Myrick attempted to find employment by reading classified ads and talking to people. There is no evidence that he sought the assistance of an employment commission or agency. Moreover, there is no evidence that Myrick sought employment suitable to his work capacity in some field of endeavor other than real estate. Accordingly, we affirm the commission's finding that Myrick failed to market his residual work capacity.
IV. ESTOPPEL ISSUE
Finally, Myrick contends that Central Telephone is estopped from terminating his benefits for failure to market residual work capacity. McGuinn I, 5 Va. App. at 272-73, 362 S.E.2d at 191. We disagree. The commission correctly noted that Myrick, not Central Telephone, failed to file the memorandum of agreement, the reverse of the fact situation in McGuinn I. Moreover, in McGuinn I we noted that because of misleading conduct by the employer and carrier, McGuinn reasonably believed that "he was still [under] compensation." In addition, McGuinn made reasonable efforts to find suitable employment despite a lack of assistance from his employer. Id. at 273, 362 S.E.2d at 191.
Here, Myrick was made aware that Central Telephone expected him to market his remaining work capacity and offered him some assistance to that end. The record does not support the contention that Myrick was misled by Central Telephone's conduct, the principal element in a claim of estoppel. Id. at 271-72, 362 S.E.2d at 190. Accordingly, the commission correctly determined that the doctrine of estoppel did not impede Central Telephone's claim that Myrick failed to market his remaining work capacity.
For these reasons, the decision of the commission denying further benefits to Myrick is affirmed.
Affirmed.