In the Court of Appeals of Virginia on Tuesday
the 3rd day of May, 2011.
Ross & Sons Utility Contractor, Inc. and
Commonwealth Contractors Group Self-Insurance Association,
Record No. 2022-10-1
Claim No. 235-69-37
Christopher Samuel Hively,
Upon a Petition for Rehearing
Before Judges Humphreys, Powell and Senior Judge Coleman
On March 18, 2011 came the appellants, by counsel, and filed a petition praying that the Court
set aside the judgment rendered herein on March 15, 2011, and grant a rehearing thereof.
On consideration whereof, the petition for rehearing is granted, the mandate entered herein on
March 15, 2011 is stayed pending the decision of the Court, and the appeal is reinstated on the docket of
The appellee shall file an answering brief within 21 days of the date of entry of this order.
Cynthia L. McCoy, Clerk
original order signed by a deputy clerk of the
Court of Appeals of Virginia at the direction
of the Court
COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Powell and Senior Judge Coleman
ROSS & SONS UTILITY CONTRACTOR, INC. AND
COMMONWEALTH CONTRACTORS GROUP
Record No. 2022-10-1
MEMORANDUM OPINION *
MARCH 15, 2011
CHRISTOPHER SAMUEL HIVELY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Audrey Marcello; Shaunté M. Hurley; Taylor Walker, P.C., on
brief), for appellants. Appellants submitting on brief.
No brief for appellee.
Ross & Sons Utility Contractor, Inc., and its insurer, Commonwealth Contractors Group
Self-Insurance Association (collectively “employer”), appeal a decision of the Virginia Workers’
Compensation Commission (commission) finding Christopher Samuel Hively (claimant) (1) was
entitled to temporary partial disability benefits beginning April 25, 2009, through the hearing
date, and continuing; (2) had no duty to market his residual work capacity; and (3) adequately
marketed his residual work capacity. Employer also contends the commission erred in
concluding the holding of Ford Motor Company v. Favinger, 275 Va. 83, 654 S.E.2d 575 (2008),
was distinguishable from the facts of this case. Because the record contains no evidence
claimant made a reasonable effort to market his residual work capacity beyond obtaining a new
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
job for a portion of the hours he worked pre-injury, we reverse the commission’s ruling and its
award of temporary partial disability benefits to claimant. 1
“On appeal, we view the evidence in the light most favorable to the prevailing party
before the commission.” Central Va. Obstetrics & Gynecology Assocs., P.C. v. Whitfield, 42
Va. App. 264, 269, 590 S.E.2d 631, 634 (2004). Whether an employee seeking disability
benefits has made a reasonable effort to market his residual work capacity is a factual
determination. Favinger, 275 Va. at 89-90, 654 S.E.2d at 579. “‘Factual findings by the
commission that are supported by credible evidence are conclusive and binding upon this Court
on appeal.’” Estate of Kiser v. Pulaski Furniture Co., 41 Va. App. 293, 298, 584 S.E.2d 464, 467
(2003) (quoting Southern Iron Works, Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34
(1993)). “The Commission’s factual findings, however, are ‘conclusive and binding’ only to the
extent that they are ‘predicated upon evidence introduced or appearing in the proceedings.’”
Favinger, 275 Va. at 88, 654 S.E.2d at 578 (quoting Uninsured Employer’s Fund v. Gabriel, 272
Va. 659, 664, 636 S.E.2d 408, 411 (2006)). “If the Commission’s findings of fact are not based
on credible evidence, ‘its findings are not binding and the question presented becomes one of
law.’” Id. (quoting Great Atlantic & Pacific Tea Co. v. Robertson, 218 Va. 1051, 1053, 243
S.E.2d 234, 235 (1978)).
On October 16, 2007, claimant sustained a compensable injury to his lower left leg.
Claimant received various periods of temporary total, temporary partial, and permanent partial
disability benefits based on his pre-injury average weekly wage of $630.59.
We grant appellant’s motion for leave to supplement the opening brief with citation of
additional authority, and we have considered the additional authority in reaching our decision.
On January 20, 2009, claimant was released to light-duty work with the following
restrictions: walking, standing, bending, and stooping limited to two to three hours per day; no
climbing; no lifting more than twenty pounds; and pushing limited to one to two hours per day.
On February 19, 2009, claimant reached maximum medical improvement and his restrictions
Prior to his injury, appellant worked between forty-five and fifty hours each week for
employer at an hourly rate of $11.50 per hour. 2 Because light-duty work was not made available
to claimant through his pre-injury employer, on February 7, 2009, claimant secured his own
light-duty position, a part-time job with Lowe’s working an average of thirty-four hours per
week. 3 He did not look for additional work with another employer to compensate for the loss of
the ten-plus additional hours he had been working prior to his injury.
On August 24, 2010, the commission concluded claimant was entitled to temporary
partial disability benefits for 66 2/3 percent of the difference between his pre-injury average
weekly wage of $630.59 and his post-injury average weekly wage of $368.68. It explained,
“[a]lthough there was no explicit limit to the number of hours he could work, there were limits
on standing and walking that were exhausted by his work with Lowe’s. . . . Second, the
claimant’s job with Lowe’s [was] evidence of a good faith marketing effort.” The commission
also distinguished the facts of this case from those in Favinger by explaining, “[u]nlike Favinger,
the claimant is not seeking to replace lost overtime. He seeks wage loss benefits because his
He did not earn overtime wages.
Although claimant testified he worked approximately thirty hours per week for Lowe’s,
his pay stubs from February 7, 2009 through October 2, 2009, indicate he worked an average of
thirty-four hours per week. A Lowe’s employee is considered a full-time employee if he works
thirty-nine hours per week.
injuries prevent him from the long hours of construction work he did in the past before his injury
and in happier economic times.” This appeal followed.
“In a claim for temporary partial disability, the employee ‘[has] the burden of proving
that he [has] made a reasonable effort to procure suitable work but [is] unable to market his
remaining work capacity.’” Favinger, 275 Va. at 89, 654 S.E.2d at 578 (quoting Washington
Metro. Area Transit Auth. v. Harrison, 228 Va. 598, 601, 324 S.E.2d 654, 656 (1985))
(alterations in original).
There are no fixed guidelines for determining what constitutes a
“reasonable effort” by an employee to market residual work
capacity. An employee must “exercise reasonable diligence in
seeking employment” and the reasonableness of an employee’s
effort will be determined on a case by case basis, taking into
account “all of the facts and surrounding circumstances.” Great
Atlantic & Pacific Tea Co. v. Bateman, 4 Va. App. 459, 467, 359
S.E.2d 98, 102 (1987). Some of the criteria, however, that should
be considered include:
(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. National Linen Service [v. McGuinn], 8
Va. App. [267,] 272, 380 S.E.2d [31,] 34 [(1989)]
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.’” Id. at 271, 380 S.E.2d at 34.
Id. at 89-90, 654 S.E.2d at 579 (2008) (citations omitted).
Here, the evidence supports the commission’s finding that claimant made a reasonable
effort to secure employment and he obtained a job within his residual work capacity for
approximately thirty-four hours per week. 4 However, the evidence also established appellant did
not look for additional work to mitigate his wage loss for the reduction in hours between his
pre-injury job with employer and his post-injury job with Lowe’s. Although the commission
attempted to distinguish Favinger, 275 Va. at 83, 654 S.E.2d at 575, from the facts of this case,
we find Favinger and CVS #1549/CVS of Virginia, Inc. v. Plunkett, 57 Va. App. 373, 702
S.E.2d 578 (2010), to be controlling. In Favinger, the Supreme Court concluded an injured
employee must make some effort to mitigate wage loss when a new position does not offer
claimant the same number of hours the claimant worked before he was injured. Favinger, 275
Va. at 91, 654 S.E.2d at 579-80. In Plunkett, the Court explained that the requirement for an
injured employee to market the full amount of his residual work capacity applies to regular work
hours, as well as overtime hours. Plunkett, 57 Va. App. at 378, 702 S.E.2d at 580-81. Here,
although the commission stated claimant’s “limits on standing and walking . . . were exhausted
by his work with Lowe’s,” the evidence does not support this assertion. Instead, the record
established claimant made no effort to obtain sedentary work to mitigate the remainder of his
wage loss and, thus, there is no evidence in the record that an additional part-time sedentary job
would have interfered with claimant’s work restrictions. Following Favinger and Plunkett, we
conclude claimant had a duty to mitigate his wage loss to the full extent of the hours he worked
pre-injury. As such, we cannot conclude the claimant proved he adequately marketed his
residual work capacity beyond the thirty-four hours per week he worked at Lowe’s.
For these reasons, we reverse the commission’s decision that (1) Favinger is
distinguishable or inapplicable to the facts of this case, (2) claimant adequately marketed his full
His new job paid $1.20 per hour less than his position with employer.
residual work capacity by obtaining a job at Lowe’s, and (3) claimant had no duty to market any
residual work capacity beyond obtaining a job at Lowe’s.
We remand to the commission for a calculation of claimant’s temporary partial disability
benefits beginning April 25, 2009, through the hearing date, and continuing, for the difference
between claimant’s post-injury average weekly wage and his pre-injury average weekly wage for
thirty-four hours per week.
Reversed and remanded.