COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Bumgardner 

Argued at Richmond, Virginia 

ARNOLD HAROLD HOLEMAN, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 3074-00-2 JUDGE JAMES W. BENTON, JR. 

 AUGUST 28, 2001 

HAROLD HOLEMAN, GRANITE STATE 

 INSURANCE COMPANY AND AMERICAN 

 INTERNATIONAL ADJUSTMENT COMPANY, INC. 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Andrew J. Reinhardt (Kerns, Kastenbaum & 

Reinhardt, on briefs), for appellant. 

 S. Vernon Priddy III (Patsy L. Mundy; Sands 

Anderson Marks & Miller, on brief), for 

appellees. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 

 The sole issue raised by this appeal is whether the 

Workers' Compensation Commission erred in finding that Arnold 

Harold Holeman, Jr., did not use reasonable efforts to market 

his residual work capacity. We affirm the commission's 

decision. 

I. 

 For over twenty years, Holeman was the sole proprietor of a 

construction business. His work primarily consisted of 

residential remodeling projects, including trimming, siding, and 

building Florida rooms and decks. On October 7, 1998, Holeman 
sustained injury to his neck, back and shoulder in an automobile 

accident. Holeman filed a claim for benefits and was awarded, 

by stipulation and a consent order, temporary total disability 

benefits for the period of October 8, 1998 through February 11, 

1999, and temporary partial disability benefits from February 

12, 1999 through July 15, 1999. Holeman later filed a claim 

alleging a change in condition and seeking temporary total and 

temporary partial disability benefits from July 9, 1999 and 

continuing. 

 At the evidentiary hearing, Holeman testified that he was 

unable to work for eight months after the automobile accident. 

He initially returned to employment by working for his friends, 

where he earned "cash" money performing light duty work. Once 

he "could get back on [his] feet," he restarted his own 

construction business. By that time, he had lost the business 

connections he had established through other contractors, 

especially for work involving the building of Florida rooms and 

decks. Holeman testified that he has tried to re-establish his 

prior contacts, but that he has "had to change [his] type of 

work" and now does trim and siding work. Holeman said he has 

also modified his business to better suit the limitations of his 

injuries and does "a lot of subcontracting." 

 Holeman has been averaging one job per week and testified 

that he will be able to earn a "decent" wage in the next six to 

twelve months. According to his records, his business 

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experienced a loss of about $23,000 for the period of July 9, 

1999 through April 22, 2000. Holeman testified that he earned 

$48.13 in August 1999, the only month which his business did not 

reflect an overall loss. He explained that although he has 

earned no money, he has "bought quite a bit of the tools that 

[he] need[s] to do . . . the work . . . just to stay in the 

business until [he] get[s] back on [his] feet." 

 The deputy commissioner ruled that Holeman was making 

adequate efforts to market his residual earning capacity and 

awarded him compensation. On review, the commission found that 

Holeman has "work skills that should permit him to earn 

significant wages in the construction industry." The commission 

found it unreasonable that Holeman did not seek suitable 

employment from other employers after his self-employment proved 

to be unprofitable. The commission reversed the award. Holeman 

appeals from that decision. 

II. 

 An employee who seeks an award for temporary partial 

disability benefits has the burden of proving that he or she 

made "a 'reasonable effort' to market his [or her] remaining 

work capacity." National Linen Serv. v. McGuinn, 8 Va. App. 

267, 269, 380 S.E.2d 31, 33 (1989). We reiterated in McGuinn

the rule that "'[t]he employee must . . . exercise reasonable 

diligence in seeking employment, and what is reasonable in a 

given case will depend upon all the facts and circumstances.'" 

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8 Va. App. at 270-71, 380 S.E.2d at 33 (quoting Great Atlantic & 

Pacific Tea Co. v. Bateman, 4 Va. App. 459, 467, 359 S.E.2d 98, 

102 (1987)). 

 Holeman contends that his case presents a novel issue 

because he was returning to self-employment. Based upon this 

assertion, he argues that we should apply a standard less 

deferential to the commission's findings. We decline to 

establish a different standard for self-employed persons because 

the issue confronting the commission is the same for all 

employees: Were the efforts of the employee to market his or 

her residual work capacity reasonable under the circumstances, 

including circumstances of self-employment? 

 In applying the McGuinn rule, the commission clearly 

engaged in a fact-finding task. According to well established 

appellate principles, we will uphold "[f]actual findings of the 

. . . Commission . . . if supported by credible evidence." 

James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 

S.E.2d 487, 488 (1989). Furthermore, we must view the evidence 

in the light most favorable to the party prevailing below to 

determine if credible evidence supports the findings. Crisp v. 

Brown's Tysons Corner Dodge, 1 Va. App. 503, 504, 339 S.E.2d 

916, 916 (1986). So viewed, the evidence proved that Holeman 

initially returned to employment by working for his friends in 

the construction industry for "cash" wages. Since that time, he 

has worked to re-establish his own business. The record 

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contains credible evidence to support the commission's findings 

that Holeman's "physical work restrictions are not severe" and 

that his work skills would "permit him to earn significant 

wages." The evidence also proved, and the commission found, 

that Holeman "has not even attempted to locate other higher 

paying work." Holeman concedes on brief "that he did not 

job-hunt." 

 The record supports the commission's finding that Holeman 

has used his earnings to invest in tools and equipment in an 

attempt "to reorganize his unprofitable construction business." 

Credible evidence also supports the commission's finding that 

Holeman acted unreasonably when he "did not seek suitable 

employment from other employers, particularly after his 

self-employment activities . . . failed to generate any profit 

[and] lost considerable amounts of money for an extended period 

of time." In making that finding, the commission appropriately 

considered Holeman's "age, skills, work history, and minimal 

restrictions." See McGuinn, 8 Va. App. at 272, 380 S.E.2d at 

34. 

 In addition, the commission reviewed Holeman's records and 

found "it speculative at best . . . whether [Holeman's] 

construction business will ever generate additional revenues." 

The record supports the commission's finding that Holeman was 

using "his company's revenues for capital investment and payment 

of salaries to other employees rather than paying himself." As 

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the commission found, Holeman made the decision to limit his 

wages "by continuing with unprofitable, if not failing, 

self-employment activity." 

 Holeman contends the commission erred in ruling that ARA 

Services v. Swift, 22 Va. App. 202, 468 S.E.2d 682 (1996), was 

not applicable to his circumstances. In that case, a disabled 

employee returned to her pre-injury employment, but could only 

perform light-duty work. She worked fewer hours a week and 

therefore earned less money. Id. at 204, 468 S.E.2d at 683. We 

affirmed the commission's ruling that the employee had 

adequately marketed her residual work capacity. Credible 

evidence established that the employee acted reasonably because 

she might have lost benefits if she had refused to accept the 

light-duty position. Id. at 207, 468 S.E.2d at 684. 

 We agree with the commission that Holeman's case is 

distinguishable because his wage loss results "from a 

combination of the loss of business referrals and his 

reinvestment in his business." Credible evidence supports the 

commission's finding that his wage loss does not result "from 

part-time employment or from his acceptance of a light duty 

position offered by his pre-injury employer (himself)." We 

hold, therefore, that the evidence supports the commission's 

ruling that Holeman's decision to forego employment as a 

construction worker and, instead, to attempt to re-establish his 

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business was not, under these circumstances, a reasonable effort 

to market his work capacity. 

 Accordingly, we affirm the commission's decision. 

 Affirmed. 

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