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Ridenhour v. City of Newport News

Court of Appeals of Virginia
Apr 30, 1991
12 Va. App. 415 (Va. Ct. App. 1991)

Summary

holding that an analysis of the reasonableness of a claimant's efforts to market residual skills "would necessarily include consideration of the claimant's perception of his condition, his abilities, and his employability, and of the basis for the perception"

Summary of this case from Baum v. the Sports Auth.

Opinion

47055 No. 0376-90-2

Decided April 30, 1991

(1) Workers' Compensation — Benefits — Remaining Work Capacity. — What is reasonable in one area or in one industry may not be reasonable in another; the employee obviously must exercise reasonable diligence in seeking employment and what is reasonable in a given case will depend upon all of the facts and surrounding circumstances.

(2) Workers' Compensation — Benefits — Remaining Work Capacity. — Whether the employee has made a reasonable effort to market his residual work capacity depends on all the facts and circumstances, including the employee's perception of his condition, his abilities, his employability, and the basis for that perception.

Gregory S. Hooe (Traylor Morris, on brief), for appellant.

Collins L. Owens, Jr., Senior Assistant City Attorney (Verbena M. Askew, City Attorney, on brief), for appellee.


SUMMARY

Employee appealed the decision of the Industrial Commission holding that he had failed to market his residual skills. He argued that the commission erred in finding that his physician had released him to return to limited duty work.

The Court of Appeals reversed, holding that the commission failed to determine when the employee's disability became partial, when he became employable, and to make an analysis of the reasonableness of the employee's efforts to market his residual skills.

Reversed and remanded.


OPINION


In this appeal we hold that it is not required that a workers' compensation claimant who suffers partial disability be informed by his physician that he may undertake restricted work in order for him to be obligated to make reasonable efforts to market his residual skills.

On September 18, 1988, while employed by the City of Newport News, the claimant, James A. Ridenhour, experienced a compensable industrial injury. As a result of this injury he suffered post-traumatic stress disorder, causing him to be totally disabled from October 3, 1988 through November 27, 1988. The employer contends that as of the latter date, the claimant was able to return to restricted work, but that he failed to make reasonable efforts to market his residual skills and therefore is not entitled to benefits after that date. The Industrial Commission found that the claimant received a copy of a letter dated January 18, 1989, written by his attending physician, Dr. Patrick D. Thrasher, to the employer's representative, stating that the claimant was generally recovered but should not return to work as a medic. Finding that the claimant was thereby on notice that he could return to work which did not involve the imposition of severe stress, the commission further found that he had thereafter failed to make reasonable efforts to market his residual skills, and terminated his compensation effective January 12, 1989.

The claimant contends that he was never released by his attending physician to return to limited duty work, and therefore had no obligation to market his residual skills. He contends that he is entitled to compensation through May 31, 1989, after which date he was self-employed. The employer contends that the evidence shows that the claimant was able to return to light duty work on November 28, 1988, and that his duty to market his residual skills arose then. It argues that the commission erred in refusing to impose that obligation on the claimant prior to his receiving notice from Dr. Thrasher that he was released to light duty work.

Total disability exists when the claimant is disqualified from pursuing the usual tasks of a workman in such a way as to enable him to procure and retain employment. Yet his inability to market his remaining capacity for work must be made to appear before total incapacity payments are warranted under Sec. 65-51 [now Sec. 65.1-54]. The issue of whether a workman, who is partially physically incapacitated, is able to obtain employment requires proof that a reasonable effort to procure work has been made.

Pocahontas Fuel Company, Inc. v. Barbour, 201 Va. 682, 684, 112 S.E.2d 904, 906 (1960).

(1) "What is reasonable in one area, or in one industry, or even in one season might not be reasonable in another. The employee must obviously exercise reasonable diligence in seeking employment, and what is reasonable in a given case will depend upon all of the facts and surrounding circumstances. An important factor is the physical condition and the limitations placed upon the employee by his physicians." Great Atlantic Pacific Tea Co. v. Bateman, 4 Va. App. 459, 467, 359 S.E.2d 98, 102 (1987).

The Industrial Commission noted that the claimant, by notation on the letter itself and by his own testimony, received a copy of Dr. Thrasher's January 18, 1989 letter, which stated:

Mr. Ridenhour is generally recovered from the psychiatric problems he was suffering; however, it is recommended that he not return to his previous position as a medic, since returning to that job will ultimately result in a return of his stress-related illness. Mr. Ridenhour believes that he could return to work as a firefighter, even though he might from time to time face calls for medical emergencies, since the frequency of these calls would be greatly reduced.

The commission further found, based on the claimant's own testimony, that during his visits to Dr. Thrasher, which had occurred November 28, 1988, December 16, 1988, and January 12, 1989, the claimant discussed with Dr. Thrasher his employability on a basis involving minimal stress. The commission found that as of January 12, 1989, the claimant was on notice that he had employable skills and should seek employment of a type that would not impose upon him the stresses which had caused his disability. The commission further found that the claimant had failed to make the required reasonable effort to market those skills. These determinations are supported by the evidence and will not be disturbed on appeal. See McCaskey v. Patrick Henry Hospital, 225 Va. 413, 304 S.E.2d 1 (1983)

(2) The commission refused to consider whether the claimant had forfeited his right to compensation by failing to make reasonable efforts to market his residual skills prior to the date on which it found that he was given notice by his attending physician that he possessed such skills and was released to employ them. Citing its decision in Sims v. Valleydale Packers, Inc., 67 O.I.C. 185 (1988), the commission held: "A claimant must be informed that he has been released to return to light work before the burden is upon him to seek such employment." This was error. 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. The test is not a bright line such as a specific notice to the claimant, but rather is an analysis of his efforts in the context of reasonableness. As we said in Bateman, this must depend on all of the facts and surrounding circumstances. This would necessarily include consideration of the claimant's perception of his condition, his abilities, and his employability, and of the basis for that perception.

The judgment of the Industrial Commission is reversed and this case is remanded to it for determination as to when the claimant's disability became partial and he became employable and an analysis of the reasonableness of his efforts thereafter to market his residual skills.

Reversed and remanded.

Baker, J., and Moon, J., concurred.


Summaries of

Ridenhour v. City of Newport News

Court of Appeals of Virginia
Apr 30, 1991
12 Va. App. 415 (Va. Ct. App. 1991)

holding that an analysis of the reasonableness of a claimant's efforts to market residual skills "would necessarily include consideration of the claimant's perception of his condition, his abilities, and his employability, and of the basis for the perception"

Summary of this case from Baum v. the Sports Auth.

rejecting contention that a claimant remained totally disabled within the meaning of the Act and, thus, had no duty to seek selective employment unless informed by his physician that he could return to light-duty work

Summary of this case from Chicks Construction v. Torres

rejecting contention that a claimant had no duty to seek selective employment unless informed by his physician that he could return to light-duty work

Summary of this case from Brown Root, Inc. v. Richards

noting that a partially disabled employee need not be "informed by his physician that he may undertake restricted work in order for him to be obligated to ... market his residual skills"

Summary of this case from Hamilton v. Pro-Football, Inc.

In Ridenhour v. City of Newport News, 12 Va. App. 415, 418, 404 S.E.2d 89, 91 (1991), we held that it is not necessary for a physician to have informed a partially disabled employee that he has been released to light duty work before he has the burden of marketing his residual work capacity.

Summary of this case from Stamper v. Williams Industries
Case details for

Ridenhour v. City of Newport News

Case Details

Full title:JAMES A. RIDENHOUR v. CITY OF NEWPORT NEWS

Court:Court of Appeals of Virginia

Date published: Apr 30, 1991

Citations

12 Va. App. 415 (Va. Ct. App. 1991)
404 S.E.2d 89

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