COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Fitzpatrick 

Argued at Roanoke, Virginia 

LYNCHBURG GENERAL HOSPITAL 

v. Record No. 0343-95-3 OPINION BY 

 JUDGE JOHANNA L. FITZPATRICK 

ANTONIA SPINAZZOLO MARCH 26, 1996 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 

 Christine Smith (Bernard C. Baldwin, III; 

James O. Watts, IV; Edmunds & Williams, P.C., 

on brief), for appellant. 

 Robert E. Evans for appellee. 

 In this workers' compensation case, Lynchburg General 

Hospital (employer) appeals the commission's decision awarding 

benefits to Antonia Spinazzolo (claimant). Employer argues that 

the commission erred in: (1) awarding claimant compensation when 

she was recovering from surgery for an unrelated condition; (2) 

finding that claimant's work release was qualified by her 

treating physician; and (3) finding that claimant did not remove 

herself from the labor market by attending nursing school full 

time. For the reasons that follow, we affirm the commission. 

 BACKGROUND

 Beginning in October 1988, claimant worked for employer as a 

phlebotomy technician during the second shift from 3:00 p.m. to 

11:30 p.m. On August 31, 1992, she injured her right wrist, and 

employer accepted this injury as compensable. Prior to her 

injury, claimant enrolled as a nursing student at the hospital, 
 2 

 

and employer voluntarily worked with her to schedule her work 

hours around her classes. Until she was injured, claimant had 

planned to work full time during her first year of nursing 

school, thirty-two hours per week during her second year, and 

fewer hours during her third year. Claimant began nursing school 

as a full-time student in August 1993. 

 From the date of the accident until September 1993, employer 

provided claimant continuous light-duty work as a charter,1

excluding the periods from September 30 to October 15, 1992, and 

April 22 to June 20, 1993, when she remained totally disabled. 

In September 1993, claimant returned to her regular employment 

for two weeks, but again suffered pain and swelling in her hand. 

 When claimant was unable to perform her pre-injury job, her 

treating physician, Dr. James C. Dunstan, Jr., placed her on 

restricted duty. Employer again provided her light-duty work as 

a charter. While claimant was working as a charter, the hospital 

engaged in "creative scheduling" to coordinate claimant's work 

and school hours. On December 21, 1993, Dr. Dunstan reported 

that claimant would have "to give up her Phlebotomist job for a 

variety of reasons, but I think they all involve the weakness in 

her right hand and wrist. . . . [S]he's never going to have a 

normal wrist and the dexterity required of this particular job." 

 Employer eliminated the charter position in December 1993 when 

 1Claimant testified that a charter's responsibilities included 

making copies of test results, taking the copies to the floor, and 

noting the results on the patient charts. 
 3 

it began sending the test results to each floor through the 

hospital computer system. Claimant did not work from December 

1993 to March 1994 because employer had no light-duty jobs 

available. 

 After termination by employer, claimant cooperated with the 

vocational rehabilitation counselor provided by employer and met 

with him on January 29, 1994, February 18, 1994, and February 23, 

1994. Claimant complied with all of the counselor's requests and 

submitted several employment applications. In March 1994, 

claimant began working at NTS Marketing, Inc. (NTS), a job she 

obtained through the Virginia Employment Commission (VEC). NTS 

offered claimant full-time employment from 9:00 a.m. to 5:30 

p.m., but she refused it and worked part time in the late 

afternoons and evenings so that she could continue her education. 

 She also had a baby-sitting job from March 1994 to May 1994 and 

worked for a sitter/companion agency. Claimant sought jobs that 

would not conflict with her nursing school classes and, at times, 

worked two jobs. In August 1994, claimant applied for a courier 

job with employer, a job that required full-time hours from 10:00 

a.m. to 7:00 p.m. Employer never offered claimant the job 

because of the potential conflict with her educational plan, but 

attempted to find someone to split the hours with her. 

 On May 31, 1994, Dr. Dunstan noted that claimant could 

attempt work as a phlebotomist on a trial basis, and he 

reiterated this "work trial" release on July 15, 1994 and August 
 4 

4, 1994. However, claimant underwent surgery in June 1994 for an 

unrelated problem and was unable to work from June 8, 1994 to 

July 15, 1994. In his August 25, 1994 deposition, Dr. Dunstan 

stated that claimant should be able to perform most tasks 

required of a phlebotomist, but qualified his response: "I would 

feel she's definitely able to try this job. . . . If she can do 

it, great; if the pain is too limiting to her, then I would have 

to say she couldn't, but I think she's definitely able to try 

it." (Emphasis added). During the deposition, Dr. Dunstan noted 

claimant's potential problems in performing her pre-injury 

employment, such as range of motion limitations and difficulty in 

locating her hand when drawing blood. 

 Claimant filed an application for benefits beginning April 

4, 1994 and continuing. During her deposition, claimant 

testified that, at all times, she has been available to work the 

second shift from 3:00 p.m. to 11:30 p.m., the shift she worked 

prior to her accident. Claimant is willing to try her pre-injury 

employment as a phlebotomist, but employer has not offered her 

the opportunity. 

 In awarding claimant benefits, the commission found that: 

(1) regardless of the unrelated surgery in June 1994, claimant 

would have remained disabled from her pre-injury employment from 

June 8, 1994 to July 15, 1994; (2) Dr. Dunstan merely released 

claimant to perform her pre-injury employment on a "work trial" 

basis; and (3) although claimant is a full-time nursing student, 
 5 

under the facts of this case, she did not remove herself from the 

labor market. 
 6 

 COMPENSATION DURING RECOVERY FOR UNRELATED CONDITION

 Employer argues that the commission erred in finding that 

claimant was entitled to compensation during the period in which 

she was recovering from surgery for a condition unrelated to her 

industrial accident. 

 On appeal, "we review the evidence in the light most 

favorable to the prevailing party." R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 

"Factual findings of the . . . [c]ommission will be upheld on 

appeal if supported by credible evidence." James v. Capitol 

Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 

(1989). 

 The commission determined that, "[r]egardless of [her] other 

conditions, the employee would have remained disabled as a result 

of the industrial accident for the period claimed." Credible 

evidence supports this finding. During the period in dispute, 

claimant had not been released to return to her pre-injury 

employment. Although claimant's surgery produced a concurrent 

disability, the evidence established that she had not fully 

recovered from her compensable injury. The dates of claimant's 

recovery period for the intervening injury were June 8, 1994 to 

July 15, 1994, a period prior to Dr. Dunstan's release of 

claimant to her pre-injury employment on August 4, 1994. Thus, 

the commission did not err in holding employer responsible for 

compensation during the disputed period. 
 7 

 WORK RELEASE

 Employer next contends that the commission erred in finding 

that claimant's work release was qualified by her treating 

physician. 

 In addressing the work release issue, the commission found 

that, "[a]lthough Dr. Dunstan indicated that the employee could 

attempt her pre-injury employment on several occasions, there is 

no absolute release to full duty in the record." Credible 

evidence supports the commission's finding that Dr. Dunstan did 

not give claimant an unqualified release to return to her preinjury employment. In December 1993, Dr. Dunstan indicated that 

claimant's wrist would never again have the dexterity required of 

a phlebotomist. During three separate visits from May to August 

1994, he told claimant she could attempt her pre-injury 

employment on a "work trial" basis. Additionally, Dr. Dunstan 

noted several potential limitations that claimant might encounter 

in attempting her pre-injury employment, including performing 

tasks that require a complete range of motion and locating her 

hand when drawing blood. Under these facts, the commission did 

not err in finding that Dr. Dunstan qualified claimant's work 

release. 

FAILURE TO MARKET REMAINING WORK CAPACITY

 Lastly, employer argues that the commission erred in finding 

that claimant did not effectively remove herself from the labor 

market by limiting her job search to second-shift work because of 
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her status as a full-time student. 

 "In order to continue to receive benefits under the Workers' 

Compensation Act, a claimant who has been injured in a 

job-related accident must market [her] remaining capacity to 

work." Herbert Bros. v. Jenkins, 14 Va. App. 715, 717, 419 

S.E.2d 283, 284 (1992). "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). 

 [I]n deciding whether a partially disabled 

employee has made reasonable effort to find 

suitable employment commensurate with [her] 

abilities, the commission should consider 

such factors as: (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 suitable employment. 

National Linen Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d 

31, 34 (1989) (footnotes omitted). "The commission . . . 

determines which of these or other factors are more or less 

significant with regard to the particular case." Id. at 272-73, 

380 S.E.2d at 34-35. 

 In examining a claimant's "intent in conducting [her] job 

search," the commission must decide "whether it was evident from 

the employee's conduct that [s]he was acting in good faith in 

seeking suitable employment." Id. at 272 n.3, 380 S.E.2d at 34 
 9 

n.3. "Other factors that the commission should consider include 

whether the employee voluntarily removed [her]self from the job 

market,2 whether the employee unreasonably restricted the 

geographic area of [her] search, and whether . . . she is capable 

of being retrained." Id. at 272 n.5, 380 S.E.2d at 34 n.5 

(emphasis added) (citation omitted). Similarly, another factor 

that the commission should consider is whether the employee 

unreasonably restricted her job search by imposing a time 

limitation, as in the instant case. 

 "Upon judicial review of the commission's finding that a 

claimant has made a reasonable marketing effort, the Court must 

view the evidence in the light most favorable to the prevailing 

party. However, where, as here, there is no conflict in the 

evidence as to the relevant factors, the question of sufficiency 

is one of law." Sipe, 16 Va. App. at 716, 434 S.E.2d at 318 

(citation omitted). 

 Under the circumstances existing in this case, we cannot say 

 

 2Whether a claimant has voluntarily removed herself from a 

portion of the labor market is only one factor that the commission 

must consider in determining whether a claimant has reasonably 

marketed her residual capacity. A claimant voluntarily removes 

herself from the labor market if he or she "has the physical 

capacity for employment at the time of the removal." Baskerville 

v. Saunders Oil Co., 1 Va. App. 188, 192, 336 S.E.2d 512, 514 

(1985). However, the commission has held that "mere status as a 

full time student does not, by itself, establish the employee 

cannot actively participate in vocational rehabilitation." 

Helmick v. Rubbermaid Commercial Prods., Inc., 71 O.I.C. 284, 285 

(1992). "[A]t a minimum, there must be some showing that the 

employee's status as a full time student interfered with the 

vocational rehabilitation efforts." Id. 
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as a matter of law that the commission erred in finding that 

claimant adequately marketed her residual capacity and did not 

remove herself from the labor market by continuing to attend 

nursing school while attempting to work. The commission 

specifically found as follows: 

 [C]laimant cooperated with vocational 

rehabilitation efforts, obtained employment, 

attempted to return to her pre-injury 

employment, and worked while attending 

nursing school full-time. [She] is also 

willing to attempt her pre-injury employment 

again and is available to work full-time 

hours. These hours are also identical to 

those required by her pre-injury employment 

since 1988. Under these circumstances, we 

find that the employee has not removed 

herself from the labor market and is entitled 

to compensation. 

 

In making these findings, the commission implicitly determined 

that claimant reasonably marketed her remaining work capacity. 

 The commission must weigh the McGuinn factors in determining 

whether an employee has adequately marketed his or her remaining 

capacity to work, and this determination depends upon the facts 

in each case. One factor may provide greater support for the 

commission's decision than another based on the overall 

circumstances in each case. In the instant case, the evidence 

established that: (1) after her accident, claimant accepted 

light-duty employment with employer as a charter and worked at 

the hospital until the charter position was eliminated in 

December 1993; (2) claimant cooperated fully with the vocational 

rehabilitation counselor provided by employer by meeting with the 
 11 

counselor three times, submitting several employment 

applications, and complying with all of the counselor's requests; 

(3) claimant registered with the VEC and obtained part-time 

employment at NTS; (4) claimant also worked as a baby-sitter and 

as a companion, often working two jobs while attending school 

full time; (5) in August 1994, claimant applied for the courier 

position at the hospital; (6) employer never offered the courier 

position to claimant but tried to find someone to split the hours 

with claimant; (7) before her accident, claimant enrolled as a 

nursing student and employer engaged in "creative scheduling" to 

tailor claimant's work hours to her school hours; (8) since 

October 1988, claimant had worked the second shift from 3:00 p.m. 

to 11:30 p.m. and, after the accident, claimant was available for 

second-shift work at all times; and (9) claimant is willing to 

attempt her pre-injury employment. 

 Although similar time restrictions on a job search might 

under other circumstances be unreasonable, credible evidence 

supports the commission's finding that claimant's limitation of 

her search to second-shift positions was reasonable in light of 

her extensive marketing efforts and the history between the 

parties. Employer essentially lulled claimant into believing 

that she was not required to find additional full-time 

employment. Employer coordinated her school hours and work hours 

before and after her accident by providing claimant with secondshift employment. When claimant applied for the courier position 
 12 

in August 1994, employer did not offer the position to claimant, 

but instead searched for someone to share the hours with her so 

that her work would not conflict with her education.3

 Thus, both 

her employment history with the hospital as a second-shift 

employee and employer's affirmative endorsement of claimant's 

work and school schedule before and after her accident support 

the commission's finding that claimant reasonably marketed her 

remaining work capacity and did not remove herself from the labor 

market by attending school full time. 

 Accordingly, the decision of the commission is affirmed. 

 Affirmed. 

 

 3

If employer had offered the courier job to claimant, she would 

have been required to accept it to continue receiving benefits.