COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Benton and Coleman 

Argued at Salem, Virginia 

ABB PAINT FINISHING and 

 BIRMINGHAM FIRE INSURANCE 

 COMPANY OF PENNSYLVANIA 

 MEMORANDUM OPINION* BY 

v. Record No. 0055-97-3 JUDGE SAM W. COLEMAN III 

 OCTOBER 14, 1997 

BURLEY W. HENLEY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 M. Lanier Woodrum (Wooten & Hart, P.C., on 

brief), for appellants. 

 Helen J. Spence (Beller & Spence, P.C., on 

brief), for appellee. 

 In this appeal from the Workers' Compensation Commission, 

ABB Paint Finishing (employer) contends that the commission erred 

in finding that Burley W. Henley (claimant) made a reasonable 

effort to market his remaining work capacity thereby entitling 

him to temporary total disability benefits. Specifically, the 

employer asserts that the claimant's efforts to market his 

residual capacity could not have been reasonable, as a matter of 

law, because he restricted his job search to sheet metal work, 

which was the work that he was considered disabled from 

performing. Therefore, the employer argues, he was searching 

only for a job that he was not qualified to perform. Finding no 

error, we affirm the commission's decision. 

 

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

designated for publication. 
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 In order to qualify for continuing disability benefits, a 

claimant who has reached maximum medical improvement but remains 

partially disabled has a duty to make a reasonable effort to 

market his residual work capacity. National Linen Serv. v. 

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

burden is on the claimant to show that he has made a reasonable 

effort to obtain work but has been unable to do so. Washington 

Metro. Area Transit Auth. v. Harrison, 228 Va. 598, 601, 324 

S.E.2d 654, 655 (1985). What constitutes a reasonable marketing 

effort is determined by the facts and circumstances of each case. 

Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 

S.E.2d 98, 100 (1987). 

 "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." McGuinn, 8 Va. App. at 270, 380 S.E.2d 

at 33. The commission's factual findings will be upheld if 

supported by credible evidence in the record. Trammell Crow Co. 

v. Redmond, 12 Va. App. 610, 614, 405 S.E.2d 632, 635 (1991). 

 We said in dicta in McGuinn, 8 Va. App. at 272 n.3, 380 

S.E.2d at 34 n.3, that an example of where "a claimant would not 

be acting in good faith [would be] if he or she only applied for 

jobs similar to the previous employment, for which the claimant 

is obviously disabled and, therefore, would never be hired." 

That situation does not appertain in this case. Although the 
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claimant was deemed medically disabled from performing a sheet 

metal job, he had been performing the job for his employer at the 

time he was laid off. Thus, despite his partial disability, the 

commission could find that he was making a good faith effort to 

find the work that he was qualified to do by training and had 

recently performed. There was no evidence that the claimant's 

efforts were not in good faith, that he was not willing to take a 

sheet metal job if one was offered to him, that he used his 

disability to discourage potential employers from offering him a 

job, or that he would not be able to physically perform the job 

despite his partial disability, as he had with the employer. 

Thus, the commission could find that the claimant was not 

limiting his job search to work "for which [he] is obviously 

disabled and, therefore, would never be hired." Id.

 Here, credible evidence supports the commission's finding 

that Henley made a reasonable effort under the circumstances to 

market his residual work capacity. The forty-eight-year-old 

claimant, who had an eighth grade education, had worked for 22 

years as a sheet metal journeyman. After being laid off by the 

employer, for whom he had returned to work as a sheet metal 

worker, he registered with the Virginia Employment Commission 

(VEC) and searched the classified ads for jobs as a sheet metal 

worker. He testified that he also registered with his union's 

business agent which is the primary way sheet metal workers find 

employment. He testified that sheet metal workers are rarely 
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hired through employment advertisements or direct contact. He 

acknowledged that he restricted his job search in the time 

following his layoff to sheet metal work, but neither the VEC, 

nor the classified ads produced jobs suitable to his skills. The 

claimant obtained a job as a sheet metal worker through the union 

business agent within three months of being laid off. 

 Considering the claimant's age, limited education, work 

experience, specialized job skills, lack of other training, 

physical restrictions, and the fact that he was undergoing 

physical therapy after being laid off, we cannot say that the 

claimant's effort to market his residual work capacity was not 

reasonable as a matter of law. Although the claimant restricted 

his job search to sheet metal work for which he was qualified by 

training, a job which he obtained within three months, the 

commission did not err in finding his efforts reasonable under 

the circumstances. Because credible evidence supports the 

commission's finding that the claimant made reasonable efforts to 

market his residual capacity, we affirm. 

 Affirmed.