COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner 

Argued at Salem, Virginia 

GRACE ELLEN FALLS 

 MEMORANDUM OPINION* BY 

v. Record No. 1326-98-3 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 DECEMBER 22, 1998 

VIRGINIA MENNONITE RETIREMENT 

 AND CENTURY INDEMNITY COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 A. Thomas Lane, Jr., for appellant. 

 Douglas A. Seymour (Law Offices of Harold A. 

MacLaughlin, on brief), for appellee. 

 In this workers' compensation case, Grace Ellen Falls 

(claimant) appeals the commission's decision denying her claim 

for temporary partial disability benefits. Claimant argues that 

the commission erred in finding that she did not adequately and 

reasonably market her residual work capacity, even though she 

accepted part-time light-duty employment offered by Virginia 

Mennonite Retirement (employer). For the following reasons, we 

reverse the commission's decision. 

 I. 

 On October 3, 1990, claimant, a nurse assistant, suffered an 

injury to her lower back in the scope and course of employment. 

Her claim was accepted by employer, and several awards for 

compensation benefits and medical benefits have been entered. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
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Disability benefits were terminated in 1995. 

 At the time of her injury, claimant's duties included 

bathing, dressing and feeding patients, as well as assisting them 

to and from their beds. Most of her job required standing during 

an eight-hour shift. 

 The medical evidence established that following her 

work-related injury, claimant was given a number of work 

restrictions. On November 30, 1995, claimant's treating 

physician, Dr. David Klein, limited her to working no more than 

fifteen hours per week.1

 On April 27, 1997, Dr. Stephen 

Riggleman, a chiropractor, indicated that claimant would have 

limitations on "lifting, standing, walking, pushing, [and] 

pulling," beginning March 11, 1994. Dr. Klein subsequently 

opined that since February 5, 1993, claimant should be restricted 

from lifting no more than 25 pounds and standing no more than two 

hours at a time. At employer's request, Dr. Galen Craun, an 

orthopedic surgeon and attending physician at the time of injury, 

performed an independent medical evaluation of claimant on July 

21, 1997. He opined that claimant could not return to work 

without restrictions and he agreed with those set forth by Dr. 

Riggleman. 

 1Claimant's previous work restrictions, as noted by the 

commission, included the following: "On February 5, 1995, [Dr. 

Klein] limited her workday to a maximum of eight hours, with no 

lifting over 30 pounds. On April 5, 1994, Dr. Klein restricted 

the claimant to four hours per day. On June 23, 1994, he limited 

her work hours to five hours per day." 
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 After her injury, claimant accepted light-duty work offered 

by her employer. She testified that beginning January 1, 1997, 

she worked every other weekend, five hours per day. When she was 

originally offered these hours, claimant asked her supervisor, 

Cathy Suiter, if more work was available. Employer stated there 

was none. Thereafter, neither claimant nor employer approached 

the other about increasing her hours. Claimant has not sought 

other employment. 

 Due to the limited working hours, claimant earned less than 

her pre-injury wage and she filed a claim seeking temporary 

partial benefits from January 1, 1997 and continuing.2

 The 

commission held that claimant could not return to her pre-injury 

employment, but that she was not completely disabled. 

Accordingly, claimant was required to market her residual 

capacity. In denying benefits, the commission wrote: 

 The Deputy Commissioner found, and we agree, 

that the claimant failed to prove that she 

made a reasonable effort to secure suitable 

employment within her physical 

limitations. . . . Sufficient residual 

capacity exists between the biweekly ten 

hours the claimant works and her 

capabilities, and there is a reasonable 

likelihood that, within her community, she 

could have found a job working 15 hours per 

week under her medical restrictions. 

Moreover, evidence that such a position does 

not exist would have aided her claim. 

However, the claimant did not even minimally 

attempt to market herself. There is 

 2Claimant also sought temporary total disability benefits 

for February 21 through February 24, 1997, which was awarded by 

the commission. This finding has not been appealed by either 

party. 
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absolutely no evidence of her registering 

with the Virginia Employment Commission or 

simply looking in the help-wanted section of 

the newspaper. We cannot find that the 

claimant has made a good faith effort to 

market her residual capacity within the 

tolerance of her physical ability. 

 II. 

 In order to receive benefits under a change-in-condition 

application, claimant must prove that she made reasonable efforts 

to market her residual wage earning capacity. See Virginia Int'l 

Terminals, Inc. v. Moore, 22 Va. App. 396, 401, 470 S.E.2d 574, 

577 (1996). "What constitutes a reasonable marketing effort 

depends upon the facts and circumstances of each case." Grief 

Cos. (GENESCO) v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318 

(1993). Where there is no conflict in the evidence, the question 

of the sufficiency of the evidence is one of law. See CLC 

Constr., Inc. v. Lopez, 20 Va. App. 258, 267, 456 S.E.2d 155, 159 

(1995). 

 In National Linen Serv. v. McGuinn, 8 Va. App. 267, 380 

S.E.2d 31 (1989), we identified six factors that the commission 

must consider in determining whether an employee has reasonably 

and adequately marketed her remaining work capacity. These 

include: 

 (1) the nature and extent of employee's 

disability; (2) the employee's training, age, 

experience, and education; (3) the nature and 

extent of employee's job search; (4) the 

employee's intent in conducting [her] job 

search; (5) the availability of jobs in the 

area suitable for the employee, considering 

[her] disability; and (6) any other matter 

affecting employee's capacity to find 
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suitable employment. 

Id. at 272, 380 S.E.2d at 34 (footnotes omitted). The commission 

must also consider "whether the employee cooperated with the 

employer and if the employer availed itself of its opportunity to 

assist the claimant in obtaining employment." Id. at 272 n.5, 

380 S.E.2d at 34 n.5. 

 Claimant argues that the commission erred in finding that 

she did not make a "reasonable effort to secure suitable 

employment within her physical limitations." Relying on our 

decision in ARA Servs. v. Swift, 22 Va. App. 202, 468 S.E.2d 682 

(1996), she contends that she was not required to further market 

her residual capacity because she acted reasonably in accepting 

the light-duty employment offered by her pre-injury employer. We 

agree and reverse the commission's finding. 

 In ARA Servs., the commission found that the claimant 

reasonably and adequately marketed her remaining residual 

capacity because she accepted part-time light-duty employment 

with her employer. See id. at 205, 468 S.E.2d at 683. On 

appeal, the employer argued that the claimant was required to 

look for full-time employment within her restrictions and that 

"mere employment" was insufficient to sustain her burden in 

proving that she marketed her residual capacity. Id. at 207, 468 

S.E.2d at 684. Rejecting employer's argument, we held: 

 [C]laimant returned to her pre-injury 

employment. When she was unable to perform 

the job because of the lifting involved, 

employer offered her light-duty employment. 

Claimant accepted in good faith the 
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light-duty position offered by her pre-injury 

employer, and no evidence in the record shows 

that she was told to seek additional 

employment.

Id. (emphasis added). 

 Like the situation in ARA Servs., there was no evidence in 

the instant case that claimant was told by employer to seek 

additional employment. Instead, it was undisputed that claimant 

could not return to her pre-injury employment and she accepted 

the light-duty position offered by her employer, working every 

other weekend, five hours per day. We hold that claimant met her 

burden in proving that she reasonably and adequately marketed her 

residual capacity by accepting in "good faith" the part-time 

light-duty employment offered by her employer. See id. 

 Nevertheless, employer contends that ARA Servs. does not 

control the outcome because in that case "there [was] no evidence 

of record that the Claimant was working substantially less hours 

than those which her treating physician had allowed her to work 

in a light-duty capacity." However, contrary to employer's 

argument, the claimant's treating physician in ARA Servs. placed 

lifting restrictions on her work ability, but did not restrict 

her hours. See id. at 204-05, 468 S.E.2d at 683. Employer 

argued that the claimant was required to look for "full-time" 

employment, despite the fact that it had offered, and the 

claimant had accepted, part-time light-duty work. Id. Thus, 

there was evidence in that record that the claimant was working 

in a lesser capacity than employer argued she could have worked. 
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 Similarly, in the instant case although claimant's 

restrictions allowed her to work additional hours per week at a 

light-duty position, employer offered her a light-duty position 

with fewer hours. She cooperated with employer's efforts and 

accepted that work with its time limitations in good faith. 

Employer made no request that she seek additional work. For 

these reasons, we reverse the decision of the commission. 

 Reversed.