COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Lemons∗

Argued at Richmond, Virginia 

WHW, INC. AND 

 SELECTIVE INSURANCE COMPANY OF AMERICA 

 MEMORANDUM OPINION∗∗ BY 

v. Record No. 1460-99-2 JUDGE SAM W. COLEMAN III 

 JULY 5, 2000 

EDWARD CALVIN BRISTOW 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

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

Anderson, Marks & Miller, on briefs), for 

appellants. 

 William R. Curdts (Dunton, Simmons, & Dunton, 

L.L.P., on brief), for appellee. 

 ∗

 Justice Lemons participated in the hearing and decision of 

this case prior to his investiture as a Justice of the Supreme 

Court of Virginia. 

∗∗ Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 WHW, Inc. and its insurer, Selective Insurance Company of 

America, appeal from the commission's award of temporary total 

disability benefits to Edward Calvin Bristow. WHW argues that 

the commission erred in finding that Bristow had not 

constructively refused selective employment and that Bristow 

reasonably marketed his residual capacity. Bristow 

cross-appeals, arguing that the commission erred in sua sponte
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terminating his benefits as of January 27, 1998. We disagree 

and affirm the commission's decision. 

I. BACKGROUND

 On April 25, 1996, Bristow suffered a compensable neck, 

back, and head injury in a motor vehicle accident while working 

for WHW. Bristow was awarded temporary total disability 

benefits from April 25 through October 10, 1996, when he was 

returned to light-duty work. 

 After returning to light-duty work, Bristow did not seek 

medical treatment for his injury between February 1997 to 

November 1997. Bristow testified that after being released to 

light-duty work, he nonetheless continued to experience lower 

back pain. He testified that he did not seek additional medical 

treatment for the pain during this period because he believed 

that WHW would not pay for the treatment. On November 14, 1997, 

complaining of lower back and neck pain, Bristow sought medical 

treatment from his treating physician, Dr. George C. Green. 

Bristow's treating physician diagnosed Bristow with chronic low 

back sprain and instructed Bristow not to work with heavy 

equipment for three weeks. On December 3, 1997, Bristow 

suffered a stroke, which affected, among other things, his 

speech. On December 10, 1997, Bristow saw Dr. Green for a 

follow-up visit, and Bristow reported to Dr. Green that he had 

not worked for three weeks, as prescribed, and that he was not 
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experiencing any back or neck pain. Based on this examination, 

Dr. Green opined that the vibrations from working as a heavy 

equipment operator exacerbated Bristow's back injury and that 

Bristow could not "return to his work as a heavy equipment 

operator as the vibrations probably were exacerbating his 

symptoms." 

 Dr. James R. Robusto, Bristow's family practitioner, 

examined Bristow on December 15, 1997, and reported that as a 

result of the stroke, Bristow had experienced excessive aphasia 

and right facial weakness. Dr. Robusto noted that the only 

residual effect from the stroke was speech difficulties for 

which Bristow was receiving therapy. 

 Within weeks of having the stroke, Bristow attempted to 

return to work because of financial considerations. He 

testified that he still experienced back pain and that the 

stroke left him with a speech impediment. On the day he 

returned to work, his employer informed him that he was no 

longer able to work for the company because his speech 

impediment posed safety concerns. Bristow's supervisor 

testified that, except for Bristow's speech impediment, he would 

have been allowed to return to work. 

 On March 26, 1998, Bristow filed a claim with the 

commission seeking temporary total disability benefits, alleging 

an additional period of disability from December 10, 1997 and 
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continuing. The commission awarded benefits from December 10, 

1997 through January 27, 1998, finding that Bristow had 

adequately marketed his residual capacity and that he was 

temporarily totally disabled. The commission found that Bristow 

presented evidence proving only that his disability extended 

through January 27, 1998; thus, the commission did not address 

whether Bristow's disability extended beyond that date. 

II. ANALYSIS

 On appeal, we view the evidence in the light most favorable 

to Bristow, the prevailing party. See R.G. Moore Bldg. Corp. v. 

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

accept the commission's factual findings when they are supported 

by credible evidence. See James v. Capitol Steel Constr. Co., 

8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). 

A. Ability to Return to Selective Employment

 WHW argues that the commission erred by finding that the 

rule articulated in American Furniture Co. v. Doane, 230 Va. 39, 

334 S.E.2d 548 (1985), and as applied by this Court in Eppling 

v. Schultz Dining Programs/Commonwealth of Va., 18 Va. App. 125, 

442 S.E.2d 219 (1994), is not applicable. WHW further argues 

that the commission erred in determining that Bristow had not 

constructively refused selective employment. WHW asserts that 

after Bristow suffered a stroke which left him with a speech 

impediment, he was unable to safely perform the duties of his 
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light-duty employment. Thus, because Bristow's inability to 

perform the light-duty work was caused by a factor unrelated to 

his industrial accident, his inability to perform the light-duty 

work was tantamount to a refusal of selective employment. 

 In Doane, the employee suffered a work-related injury to 

her back. After the employee had surgery and recovered, the 

attending physician released Doane to return to light-duty work. 

Doane, however, failed to report for light-duty work because of 

impairments to her hand, which were unrelated to and developed 

after her back injury. Doane's treating physician opined that 

the injury resulting from the industrial accident did not 

preclude her from performing the offered selective employment. 

 The Supreme Court found the employer had met its burden of 

producing evidence that the selective employment offered to 

Doane was within her residual capacity. The Court found that 

Doane, however, failed to show she was justified in refusing the 

selective employment. The Supreme Court ruled that Doane failed 

to show the necessary causal connection between her arm 

impairment and her compensable injury. The Court held that 

"[a]n employer, therefore, is absolved of liability for 

compensation if the employee refuses selective employment 

because of a physical condition unrelated to the original 

industrial accident and arising since the accident." Doane, 230 

Va. at 43, 334 S.E.2d at 550. 
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 In Eppling, the employee suffered a compensable injury and 

was subsequently returned to light-duty work. The employee 

accepted the light-duty work, but after one month was terminated 

because of excessive absences caused by health problems 

unrelated to her compensable injury. The commission found that 

because the employee was terminated for cause, she was 

permanently barred from receiving compensation benefits. We 

held that the employee's inability to perform her selective 

employment because of unrelated health problems did not bar her 

from seeking reinstatement of her workers' compensation 

benefits. However, we stated, 

[w]hen a non-work-related disability 

prevents a partially disabled employee from 

returning to his or her pre-injury work or 

from accepting selective employment, for 

purposes of the Act, the unrelated 

disability is not justification for the 

employee to refuse or not to perform 

selective employment or to fail to market 

his or her residual work capacity. Thus, 

the inability of a disabled employee to do 

selective work or to market his or her 

residual capacity due to an unrelated 

disability is equivalent to an unjustified 

refusal of selective employment. 

Eppling, 18 Va. App. at 130, 442 S.E.2d at 222 (citation 

omitted). 

 We find that WHW's reliance on Doane and Eppling are 

misplaced. In September 1996, Bristow was released to 

light-duty work with several restrictions. Dr. Green restricted 

Bristow to no prolonged sitting or standing, lifting no more 
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than twenty pounds, and operating only an excavator and tractor. 

Dr. Green also advised that Bristow take as many breaks as 

necessary. Bristow's medical records reflect that he continued 

to experience back pain. Bristow was treated again on 

November 14, 1997, when Dr. Green restricted Bristow from 

operating any heavy machinery for three weeks. Bristow's 

treating physician restricted Bristow's work activity and never 

released him to his pre-injury work. "The threshold test for 

compensability is whether the employee is 'able fully to perform 

the duties of his pre[-]injury employment.'" Celanese Fibers 

Co. v. Johnson, 229 Va. 117, 120, 326 S.E.2d 687, 690 (1985) 

(quoting Sky Chefs, Inc. v. Rogers, 222 Va. 800, 805, 284 S.E.2d 

605, 607 (1981)). 

 Credible evidence supports the commission's finding that 

Bristow continued to suffer back pain caused by his compensable 

injury until and continuing after his stroke on December 3, 1997 

and that he was partially disabled due to the industrial 

accident as of December 3, 1997. Thus, Bristow continued to be 

partially disabled, and his "inability" to perform the 

light-duty work was not based upon an unrelated disability that 

prevented him from performing the work, but rather upon the 

employer's decision that he not be permitted to do the work. 
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B. Marketing Residual Capacity

 WHW argues that the commission erred in finding that 

Bristow adequately marketed his residual earning capacity after 

his stroke. 

 A partially disabled employee is required to make 

reasonable efforts to market his residual earning capacity to be 

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). We hold 

that the commission did not err in determining that claimant 

adequately marketed his residual work capacity. 

 Here, the commission noted that Bristow's intervening 

stroke affected his capacity to find suitable employment, 

particularly in light of his work-related partial disability. 

Dr. Harris opined that considering the type of labor in which 

Bristow was experienced and capable of performing, and in light 

of his training and educational level, he was "unemployable and 

disabled for purposes of Social Security disability." Although 
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Bristow's testimony was "vague" and did not clearly show what 

efforts he had made to market his work capacity after the 

stroke, the commission relied upon Dr. Harris' January 5, 1998 

report which indicated that Bristow had job interviews scheduled 

"through the state" before the stroke but, after the stroke, he 

was not able to get an interview. In addition, he was ready and 

willing to return to light-duty work with his employer. In 

light of Bristow's level of education; prior work history, work 

which he cannot now perform; and physical limitations from the 

industrial accident and the stroke, the commission found that 

Bristow made a reasonable effort to market his residual 

capacity. Although the evidence of Bristow's efforts to secure 

other employment is minimal, it appears that Bristow made 

efforts under difficult circumstances to obtain job interviews 

but was unable to secure the interviews. We find that the 

commission's holding is supported by credible evidence. 

C. Termination of Benefits

 Bristow argues that the commission erred in sua sponte

closing the period of disability without evidence of when the 

disability ended or was expected to end. He further argues that 

the date the commission selected as the date the disability 

period ended was an arbitrary date that lacks support in the 

record. 
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 The commission determined that Bristow failed to show a 

continuing disability beyond January 27, 1998, the date that his 

last medical report showed he was to receive medical treatment 

or attention. "There is no presumption in the law that once a 

disability has been established, a claimant will be assumed to 

remain disabled for an indefinite period of time. To the 

contrary, a party seeking compensation bears the burden of 

proving his disability and the periods of that disability." 

Marshall Erdman & Assocs., Inc. v. Loehr, 24 Va. App. 670, 679, 

485 S.E.2d 145, 149-50 (1997) (citation omitted). Here, the 

last medical report was dated January 5, 1998, which showed that 

he was to have further testing or treatment on January 26, 1998, 

six months prior to the hearing before the deputy commissioner. 

The commission noted that with the exception of the change in 

intensity of Bristow's back pain reported on November 14, 1997, 

the medical records reflect that Bristow's condition appeared to 

be steadily improving following his return to work. In light of 

the absence of proof of the continuing disability, or further 

efforts to market his residual capacity, the commission did not 

err in determining that Bristow was not entitled to disability 

benefits after January 27, 1998. 

 Accordingly, we affirm the commission's decision and award 

of benefits. 

Affirmed.