Formex, Inc, etc., et al. v Charles Randal Miley

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Coleman and Elder
Argued at Richmond, Virginia
FORMEX, INC./W. B. GOODE COMPANY, INC.
and
AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY
v. 	Record No. 1493-95-2 	MEMORANDUM OPINION*
BY JUDGE JOSEPH E. BAKER
CHARLES RANDAL MILEY 	MARCH 12, 1996
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Joseph C. Veith, III (Montedonico, Hamilton &
Altman, P.C., on briefs), for appellants.
Laura Large Geller (Geoffrey R. McDonald;
McDonald & Snesil, P.C., on brief), for
appellee.
In this appeal from a decision of the Workers' Compensation
Commission (commission) by Formex, Inc./W. B. Goode Company, Inc.
and American Guarantee and Liability Insurance Company, its
insurance carrier, (jointly referred to herein as employer), the
dominant issue presented is whether the commission erred when it
entered an award in favor of Charles Randal Miley (claimant) for
benefits effective beyond July 7, 1993 and specifically beginning
August 1, 1994 and continuing. 	A secondary issue to be
considered is whether the commission wrongfully held that
claimant did not forfeit his benefits during the period December
21, 1992 to February 18, 1993. 	Finding no error, we affirm the
decision of the commission.
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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We must view the evidence in the light most favorable to
claimant, as the prevailing party below, and the fact that
contrary evidence may be found in the record is of no consequence
if credible evidence supports the commission's findings. 	See
Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409
S.E.2d 824, 826 (1991), and cases there cited. 	Viewed
accordingly, the record discloses that employer manufactures
steel curbing and bumpers. 	On November 19, 1992, claimant was
employed with employer as a shop foreman. 	On that date, claimant
sustained a compensable injury to his left shoulder as he and a
fellow employee were moving a piece of steel curbing. 	Later that
day, claimant was seen by Dr. John G. Cametas, who diagnosed
claimant's injury as an AC joint tear of the left shoulder. 	Dr.
Cametas released claimant for light-duty work. 	Claimant returned
to his usual employment but found that he could not perform the
duties required by his job. 	Employer refused to honor Dr.
Cametas's restrictions to limit his work to light duty. 	The
commission found that claimant was justified in refusing to
accept employer's offer of employment which required him to
perform his pre-injury duties.
The record discloses some conflict in claimant's job
description. 	Claimant testified that he was a working foreman
and would, on occasion, lift materials weighing between 200 and
250 pounds. 	Former co-workers, Danny Lightfoot, who now performs
claimant's job, and Mike Ketchum, testified that although

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claimant would occasionally help lift something, this was not a
requirement of claimant's job. 	The commission found that
claimant's job required that, on occasion, with the assistance of
a fellow employee, he would lift items weighing as much as 250
pounds.
Employer did not contend that claimant forfeited his right
to compensation by refusing the employment offered by employer,
but rather employer contended that claimant failed to market his
residual capacity by failing to make a reasonable effort to find
employment within his capability. 	Claimant's evidence of efforts
to find employment subsequent to being released to light duty on
April 21, 1993 consisted primarily of a list of 152 companies
that he contacted. 	The list was of dye cast foundries and
similar companies located throughout the country, with only one
company in Virginia listed. 	With respect to these companies,
claimant presented no evidence of the contact person, when the
company was contacted, what the response to the contact was, the
type of position sought, or whether the company was hiring. 	The
list contained a handwritten notation of a listing with the
Virginia Employment Commission (VEC) during the period from
1992-1994. 	No supporting documentation from the VEC was
submitted and claimant gave no testimony as to what, if any,
activities he undertook in conjunction with the VEC. 	Claimant
stated that probably one-quarter of the contacts were made after
September 13, 1993, when his deposition was taken by employer.

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Three weeks from the date of claimant's injury, Dr. Cametas
noted no improvement in claimant's injury and referred him to Dr.
Kim Sellergren, an orthopedic surgeon. 	Dr. Sellergren diagnosed
claimant's injury as a first or second degree AC joint
separation. 	After claimant was given MRI tests, Dr. Sellergren
directed that claimant not work from December 18, 1992 to
December 21, 1992. 	In a letter to Dr. Cametas, Dr. Sellergren
wrote that claimant "should do no work requiring anything other
than the lightest use (paperwork) of left arm."
On February 19, 1993, claimant underwent surgery on his
injured shoulder. 	In June 1993, Dr. Sellergren opined that he
could offer no further treatment to claimant to improve his
condition; however, he then referred claimant to Dr. Richard
Caspari, another orthopedic surgeon in Dr. Sellergren's group,
who last saw claimant on July 7, 1993. 	At that time, Dr. Caspari
concluded, "[w]e cannot find any evidence of biomechanical
shoulder instability or reasons for this pain. 	We are therefore
referring [claimant] to Dr. Ed Isaacs, a neurologist, to see if
there is possibly a cervical disc that is giving [claimant] this
problem. 	We do not feel that physical therapy is warranted any
longer." 	Thereafter, Drs. Sellergren and Caspari turned over
management of claimant's case to Dr. Isaacs, opining that from an
orthopedic view there were no further physical restrictions and
that claimant could return to work "unless further restrictions
were . . . warranted by Dr. Isaacs." 	From that, the commission

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found that as of April 22, 1994, there was no further indication
of total work incapacity.
On July 21, 1993, claimant was seen by Dr. Isaacs. 	At that
time, Dr. Isaacs stated, "I am concerned . . . that because of
the surgery [claimant] cannot generate enough stable power in
that left shoulder to do the heavy kind of work he had done
before . . . ." 	After a September 7, 1993 visit, Dr. Isaacs
reported, "[claimant's] major difficulties involve working with
his arms extended in front of him and trying to provide some type
of repetitive action which causes him increased pain and
discomfort." 	Dr. Isaacs treated claimant until September 30,
1994 and thereafter refused to see claimant because he was not
being paid for his services. 	Dr. Isaacs's last report made by a
November 7, 1994 letter stated that when he last saw claimant,
further additional services were required. 	The commission noted
"that there was no evidence in the record that [claimant] was
ever released from his light duty status." 	That observation is
supported by the record.
The commission reviewed the evidence claimant contended
showed that he had attempted to obtain selective employment
suitable to his residual capacity. 	In its opinion, it found that
evidence to be insufficient to meet claimant's burden to show he
had made the required effort. 	For that reason, the commission
declined to award benefits from April 22, 1993 to August 1, 1994,
the latter date being the date claimant obtained other employment

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at a wage of $200 weekly. 	We find the evidence sufficient to
support the commission's finding that beginning August 1, 1994
and continuing, claimant was entitled to an award of benefits for
his November 19, 1992 injury.
Employer further argues that the commission erred when it
held that claimant was entitled to compensation benefits between
December 21, 1992 and February 19, 1993. 	Employer asserts that
the record fails to show that during that period, after refusing
to return to his pre-injury employment, claimant sufficiently
marketed his residual capacity. 	Cases cited by claimant vary as
to the time limit a claimant will be justified in not marketing
his or her residual capacity. 	We have reviewed those cases and
find that a cardinal principle declared is that each case must be
judged by the commission based upon its particular facts. 	See
National Linen v. McGuinn, 8 Va. App. 267, 380 S.E.2d 31 (1989).
In addition, on appeal, those facts must be viewed in the light
most favorable to the party in whose favor the commission ruled,
here that being claimant. 	See Holley Farms Food v. Carter, 15
Va. App. 29, 422 S.E.2d 165 (1992).
It is obvious that between December 21, 1992 and February
19, 1993, claimant required substantial treatment. 	On December
18, 1992, he underwent an MRI. 	From that date, Dr. Sellergren
restricted claimant from any work until December 21, 1992. 	On
February 19, 1993, claimant underwent surgery. 	It is reasonable
to assume that the surgery was being planned during the period

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employer asserts that claimant should have been seeking selective
employment. 	We find that a reasonable view of the evidence
supports the commission's decision holding that claimant was
justified in not seeking employment during the subject period.
For the reasons stated, the decision of the commission is
affirmed.
Affirmed.