COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Agee and Senior Judge Overton 

Argued at Alexandria, Virginia 

JHOVANNA G. ROCHA 

 MEMORANDUM OPINION* BY 

v. Record No. 1294-01-4 JUDGE G. STEVEN AGEE 

 MARCH 12, 2002 

FALCON'S LANDING AND 

 ACE AMERICAN INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Julie H. Heiden (Koonz, McKenney, Johnson, 

DePaolis & Lightfoot, on brief), for 

appellant. 

 Douglas A. Seymour (Siciliano, Ellis, 

Dyer & Boccarosse, on brief), for appellees. 

 

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

designated for publication. 

 Jhovanna Rocha (the claimant) appeals the decision of the 

Workers' Compensation Commission (the commission) denying her 

claim for disability benefits from Falcon's Landing and its 

insurer, Ace American Insurance Company, (herein, collectively, 

referred to as "the employer"). She contends the commission 

erred in setting aside its previous September 15, 1998 award and 

in finding that she failed to reasonably market her residual 

work capacity. Finding no error, we affirm the commission's 

decision. 
 As the parties are fully conversant with the record in this 

case and because this memorandum opinion carries no precedential 

value, only those facts necessary to a disposition of this 

appeal are recited. 

I. BACKGROUND 

 The claimant sustained a left knee injury on July 9, 1996, 

while in the course of her employment with the employer. Her 

claim was accepted as compensable, and the claimant received 

temporary total disability benefits pursuant to the parties' 

agreement until she returned to work in October 1996. 

 On December 4, 1997, the claimant filed a claim seeking 

temporary total disability benefits from July 9, 1996 and 

continuing. She also sought permanent partial disability 

benefits. A second claim was filed on April 24, 1998, in which 

the claimant sought benefits for her pending knee surgery. 

These claims were scheduled for a hearing on August 28, 1998. 

 On August 21, 1998, the employer's insurer at the time 

filed a Supplemental Memorandum of Agreement with the commission 

which provided the claimant temporary total disability benefits. 

However, at the August 28, 1998 hearing the employer contended 

the claimant was not entitled to the benefits she sought. 

Neither party at the hearing mentioned the August 21 agreement 

filed by the carrier. 

 Unrelated to the hearing, the commission entered a 

supplemental award order dated September 15, 1998, awarding the 

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claimant temporary total disability benefits at the weekly rate 

of $283.83 beginning June 12, 1998, and continuing, based on the 

August 21, 1998 agreement. 

 Based on the August 28, 1998 hearing, a deputy 

commissioner, on November 6, 1998, entered an award for 

temporary partial disability benefits, from March 18, 1998 

through May 24, 1998, and for temporary total disability 

benefits from May 25, 1998 through June 11, 1998. The 

claimant's request for benefits after June 12, 1998, and her 

request for medical benefits covering her knee surgery, were 

denied based on a finding that the surgery and resulting 

disability were not causally related to the compensable 1996 

accident. The claimant requested a review of the decision by 

the commission. Upon review, the commission remanded the case 

to the deputy commissioner for reconsideration because the 

September 15, 1998 award appeared to be outstanding and 

contradictory. 

 The deputy commissioner held on remand that the September 

15, 1998 award was controlling and pursuant to that award, the 

claimant was awarded temporary partial disability benefits from 

March 18, 1998 through May 24, 1998, and continuing temporary 

total disability benefits beginning on June 12, 1998. Based 

upon the deputy commissioner's own findings, the claimant was 

also awarded temporary total disability benefits from May 25, 

1998 through June 11, 1998. 

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 Upon review again, the commission held (1) the employer's 

insurer erroneously filed the supplemental agreement and the 

doctrine of imposition should be applied to vacate the September 

15, 1998 award; (2) the employer was responsible for the medical 

expenses of the June 12, 1998 surgery, and (3) the claimant was 

entitled to disability benefits from June 12, 1998 to July 2, 

1998, but to none thereafter. The claimant appeals. 

II. VACATION OF THE SEPTEMBER 15, 1998 AWARD 

 The claimant appeals the commission's decision to vacate 

its earlier award. However, she fails to present any facts or 

case law to demonstrate the commission erred. 

 The General Assembly has granted "the Commission the power 

and authority not only to make and enforce its awards, but 

protect itself and its awards from fraud, imposition, and 

mistake." Collins v. Dept. of Alcoholic Bev. Con., 21 Va. App. 

671, 679-80, 467 S.E.2d 279, 283, aff'd en banc, 22 Va. App. 

625, 472 S.E.2d 287 (1996). Imposition is based on the 

principle that "the commission has 'jurisdiction to do full and 

complete justice in each case,' . . . even though no fraud, 

mistake or concealment has been shown." Avon Products, Inc. v. 

Ross, 14 Va. App. 1, 7, 415 S.E.2d 225, 228 (1992) (internal 

citation omitted). 

 The commission's decision to vacate is binding and 

conclusive upon us unless we can say as a matter of law that the 

employer's evidence failed to provide a basis upon which the 

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commission could vacate the earlier award. See generally Tomko 

v. Michael's Plastering Co., 210 Va. 697, 173 S.E.2d 833 (1970). 

Here, the commission was presented with clear and convincing 

evidence that the August 21, 1998 agreement, resulting in the 

September 15, 1998 award, was filed by mistake while the 

employer was in the process of challenging the claimant's 

submitted claims for benefits covered by the award. The 

claimant fails to present any evidence and/or case law to 

support her position that the commission abused its discretion 

in light of the employer's evidence. We, therefore, affirm the 

commission's decision to vacate the September 15, 1998 award. 

III. DISABILITY BENEFITS 

 The commission, after vacating the previous award, 

considered whether the claimant was entitled to temporary total 

disability benefits for June 12, 1998 through August 28, 1998, 

and/or medical benefits covering the June 12, 1998 surgery. Its 

decision was to award medical benefits to the claimant, which 

are not the subject of this appeal, but to deny her disability 

benefits due to her failure to market her residual ability. The 

claimant challenges this decision to terminate her benefits; 

however, she fails to present any evidence and/or case law to 

support her position. In light of the evidence before the 

commission, we affirm its decision. 

 A partially disabled employee is required to make 

reasonable efforts to market his residual earning capacity to be 

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entitled to receive continued benefits. See National Linen 

Serv. v. McGuinn, 8 Va. App. 267, 269, 380 S.E.2d 31, 33 (1989). 

"In determining whether a claimant has made a reasonable effort 

to market his remaining work capacity, we view the evidence in 

the light most favorable to . . . the prevailing party before 

the commission." Id. at 270, 380 S.E.2d at 33. "What 

constitutes a reasonable marketing effort depends upon the facts 

and circumstances of each case." Greif Companies (GENESCO) v. 

Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318 (1993). 

 Claimant was released to light duty work on July 2, 1998. 

At that time, the employer did not have an appropriate position 

available for the claimant. The claimant sought employment 

within her restrictions "by looking in the newspaper" and 

placing three calls seeking employment through August 10, 1998. 

Her attempts were unsuccessful. 

 On August 11, 1998, the claimant returned to work for the 

employer as a hostess. However, after a few hours she was 

unable to continue her shift. Between August 11, 1998 and 

August 26, 1998, the claimant contacted eleven employers, 

registered with an employment agency and the Virginia Employment 

Commission. She returned to work with the employer on August 

29, 1998, and agreed to a termination of benefits as of that 

date. 

 The commission found that the claimant's efforts were not 

reasonable. Credible evidence, i.e., the claimant's testimony 

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and her minimal list of contacts, supports the commission's 

finding that she failed to make reasonable efforts to market her 

residual earning capacity. Therefore, the commission's decision 

will not be disturbed on appeal and is affirmed. 

Affirmed.

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