COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

OCEAN COVE CONSTRUCTION CO., INC. 

AND 

NATIONWIDE MUTUAL INSURANCE COMPANY 

 MEMORANDUM OPINION*

v. Record No. 2620-95-1 PER CURIAM 

 MAY 14, 1996 

STEVAN LEE TROUTMAN 

 FROM THE VIRGINIA WORKERS' 

COMPENSATION COMMISSION 

 (Fay F. Spence; Spence & Whitlow, on briefs), for 

appellants. 

 (Gregory E. Camden; Rutter & Montagna, on brief), for 

appellee. 

 Ocean Cove Construction Co., Inc. and its insurer contend 

that the Workers' Compensation Commission erred in finding that 

it did not prove that Stevan L. Troutman ("claimant") failed to 

(1) market his residual capacity after his light-duty release; 

and (2) cooperate with vocational rehabilitation efforts. Upon 

reviewing the record and the briefs of the parties, we conclude 

that this appeal is without merit. Accordingly, we summarily 

affirm the commission's decision. Rule 5A:27. 

 I. Marketing

 In order to establish entitlement to benefits, a partially 

disabled employee must prove that he has made a reasonable effort 

to procure suitable work but has been unable to do so. Great 

 

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

designated for publication. 
 2 

Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 

98, 101 (1987). "What constitutes a reasonable marketing effort 

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

Greif Companies v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 

318 (1993). We have discussed factors which the commission 

should consider in deciding whether a claimant has made 

reasonable good faith efforts to market his remaining capacity: 

 (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 his job 

search; (5) the availability of jobs in the 

area suitable for the employee, considering 

his 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). In reviewing the commission's 

findings, "we view the evidence in the light most favorable 

to . . . the party prevailing before the commission." Id. at 

270, 380 S.E.2d at 33. 

 In awarding temporary partial disability benefits to 

claimant, the commission found that claimant marketed his 

residual work capacity. In so ruling, the commission found the 

following: 

 The medical record reflects that claimant is 

under light-duty restrictions which include 

no heavy lifting, climbing, carrying, 

squatting, kneeling, or working above ground. 

 This essentially precludes claimant from 

returning to his preinjury job. However, he 

did obtain employment with his preinjury 

employer, of which he is part-owner. It 
 3 

appears that the salary is commensurate with 

the work claimant is performing, and there is 

no evidence before us to indicate that there 

are any other employees with this company 

performing the same duties and receiving a 

greater salary. Neither does the evidence 

establish the availability of work with a 

different employer which would pay a greater 

wage. Having obtained this position with his 

preinjury employer, we find, in this case, 

that the claimant has no further duty to 

market his residual capacity. 

 These findings are supported by Dr. Morina's records, 

claimant's testimony, and the evidence concerning the jobs, which 

Janie Vogel, placement specialist, submitted to claimant for his 

consideration. Accordingly, based upon this record, we cannot 

say as a matter of law that the commission erred in ruling that 

claimant adequately marketed his residual capacity. 

 II. Vocational Rehabilitation

 In ruling the evidence was insufficient to prove that 

claimant failed to cooperate with vocational rehabilitation, the 

commission found as follows: 

 [T]he potential jobs identified by the 

placement specialist consisted of two jobs 

with an indeterminate hourly wage; one job 

with an hourly wage of $4.50, while his 

current position paid $7 per hour plus 

benefits; one position which paid an hourly 

rate less than or equal to his current 

position; a part-time position, which his 

position with the preinjury employer is fulltime; and a position which required an HVAC 

license which he did not hold. We note 

Vogel's testimony that an HVAC background was 

not required. However, the letter sent to 

the claimant listed this as a job 

requirement, and he testified that the 

potential employer informed him that HVAC 

licensure was a prerequisite. 
 4 

 These findings are supported by the testimony of claimant 

and Vogel, and demonstrated that the jobs identified by Vogel did 

not offer a greater wage than claimant was receiving from 

employer. Accordingly, we cannot say as a matter of law that the 

commission erred in finding that employer failed to prove that 

claimant did not cooperate with vocational placement. As the 

commission correctly noted, employer's contentions that these 

jobs offered the earning potential of greater wages and possible 

benefits constituted speculation and were not supported by any 

evidence. 

 For these reasons, we affirm the commission's decision. 

 Affirmed.