COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Bray and Bumgardner 

Argued at Norfolk, Virginia 

ROY RAYMOND CARNES 

 MEMORANDUM OPINION* BY 

v. Record No. 2711-97-1 JUDGE SAM W. COLEMAN III 

 JUNE 30, 1998 

RAYTHEON CONSTRUCTORS, INC. and 

 LIBERTY MUTUAL FIRE INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 

 John H. Klein (Rutter & Montagna, on brief), 

for appellant. 

 William C. Walker (Donna White Kearney; 

Taylor & Walker, P.C., on brief), for 

appellees. 

 In this appeal from the Workers' Compensation Commission, 

Roy Raymond Carnes (claimant) contends the commission erred when 

it denied him total temporary disability benefits on the ground 

that he failed to prove that he made reasonable efforts to market 

his residual work capacity between December 4, 1996 and 

January 6, 1997, and beginning February 18, 1997 and continuing. 

 Finding no error, we affirm the commission's decision. 

 On October 23, 1996, claimant sustained a compensable back 

injury while working for Raytheon Constructors, Inc. (employer) 

as a carpenter. The parties stipulated that claimant was 

entitled to temporary total disability benefits from November 14, 

1996 through December 3, 1996, and from January 7, 1997 through 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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February 17, 1997. The commission found, and claimant does not 

contest, that between the dates of December 4, 1996 to January 7, 

1997, and beginning February 18, 1997 and continuing, claimant 

was released to light-duty work subject to a five-pound lifting 

restriction. 

 Employer's Safety Supervisor, Howard Day, testified that, 

upon being injured, claimant was given a telephone number which 

he could use to inquire into light-duty work with employer. Day 

testified, and claimant admitted, that claimant did not inform 

employer of his release to light-duty work. Day testified that 

he could not say that a light-duty job definitely would have been 

available for claimant had he contacted employer. 

 Claimant admitted that he did not begin to look for 

light-duty work until February 3, 1997. Claimant testified that 

he unsuccessfully applied for employment with 110 potential 

employers. He stated that all of the jobs he applied for were in 

construction, landscaping, and carpentry. Several of these 

employers told claimant that they had no light-duty jobs 

available for him and that he should reapply upon being released 

to full duty by his doctor. Claimant admitted that he was not 

capable of performing any of the jobs to which he applied because 

they required lifting weights in excess of his five-pound lifting 

restriction. He explained, however, that he was willing to 

attempt to perform these jobs despite the lifting restriction. 

 The commission held that claimant did not make reasonable 
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efforts to market his residual work capacity because he only 

applied for jobs that were beyond his physical limitations. 

 A claimant who is released to light-duty work must prove 

that he has made a reasonable effort to market his remaining work 

capacity during any period for which disability benefits are 

sought. See Washington Metro. Area Transit Auth. v. Harrison, 

228 Va. 598, 601, 324 S.E.2d 654, 655 (1985). What constitutes a 

reasonable marketing effort is determined by the facts and 

circumstances of each case. See Great Atl. & Pac. Tea Co. v. 

Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 100 (1987). 

 When reviewing the commission's denial of disability 

benefits, we view the evidence in the light most favorable to the 

employer, as the prevailing party below. See National Linen 

Serv. v. McGuinn, 8 Va. App. 267, 270, 380 S.E.2d 31, 32 (1989). 

 Unless we can say that claimant's evidence as a matter of law 

proved that he reasonably marketed his residual work capacity, 

the commission's finding is conclusive and binding upon us. See

Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 

833, 835 (1970). 

FIRST PARTIAL DISABILITY PERIOD: 

DECEMBER 4, 1996 THROUGH JANUARY 6, 1997

 The evidence established that claimant did not seek any 

light-duty work from the employer or elsewhere between 

December 4, 1996 and January 6, 1997. Whether light-duty work 

was available from the employer is inapposite to the claimant's 

burden to prove a reasonable marketing effort. The claimant, 
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upon whom the marketing burden rests, did not make known to the 

employer his availability for light-duty work. But, moreover, 

during this period he made no effort to market his residual 

capacity. We cannot find, as a matter of law, that claimant 

sufficiently marketed his residual work capacity during the first 

disability period in question. 

SECOND DISABILITY PERIOD: 

FEBRUARY 18, 1997 AND CONTINUING

 A claimant does not meet his burden of proving that he made 

reasonable efforts to market his residual work capacity where he 

confines his job search to work for which he is not qualified by 

education, experience, or physical limitations. See Bateman, 4 

Va. App. at 467-68, 359 S.E.2d at 102-03. The "effort to seek 

employment will not be deemed reasonable if the claimant places 

undue limitations on the kind of work he will accept, including 

limitations not justified by the character of his impairment." 

Id. at 467, 359 S.E.2d at 102 (quoting 2 A. Larson, Workmen's 

Compensation Law § 57.61(d) (1987)). It appears by claimant's 

own admission that he confined his marketing efforts to 

carpentry, construction and landscaping jobs that were not within 

his physical limitations. Claimant did not look for a sedentary 

job or one that did not require lifting. Thus, under Bateman, we 

cannot say that the commission erred by finding that claimant 

failed to prove he reasonably marketed his residual capacity 

after February 18, 1997. 

 Accordingly, we affirm the commission's decision. 
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 Affirmed.