Present: All the Justices 

FORD MOTOR COMPANY 

v. Record No. 062620 OPINION BY JUSTICE CYNTHIA D. KINSER 

 January 11, 2008 

WILLIAM K. FAVINGER 

FROM THE COURT OF APPEALS OF VIRGINIA 

In this workers’ compensation claim for temporary 

partial disability benefits, the dispositive issue is 

whether an employee made a reasonable effort to market his 

residual work capacity. Because the record contains no 

evidence that the employee did so, we will reverse the 

judgment of the Court of Appeals of Virginia that affirmed 

an award of benefits.

On September 11, 2002, while working for Ford Motor 

Company, William K. Favinger suffered an injury compensable 

under the Virginia Workers’ Compensation Act (the Act), 

Code §§ 65.2-100 through 65.2-1310. Favinger received 

compensation benefits for various periods and was 

eventually released to return to light duty work on May 12, 

2003. Prior to his injury, Favinger performed work in a 

body shop that required lifting up to 25 pounds, but the 

light duty work involved less physical exertion and 

consisted of work in an office setting and some 

“containment work” in the body shop. Since his return to 
2

light duty work, Favinger has received his pre-injury 

hourly wage. 

On July 31, 2003, Favinger filed a change of condition 

application alleging entitlement to temporary partial 

disability benefits for the periods of May 12, 2003 through 

June 1, 2003 and June 10, 2003 through September 21, 2003.1

 

Favinger claimed that he earned less performing light duty 

work than he had earned in his pre-injury job because of 

the loss of overtime work offered by Ford. 

A deputy commissioner denied Favinger’s claim for 

temporary partial disability benefits. With respect to the 

issues before us, the deputy commissioner concluded 

Favinger did not show “that comparable workers in the body 

shop earned more overtime after May 12, 2003, than he was 

able to earn.” The deputy commissioner also found that 

Favinger failed to carry his burden to “prove that he 

marketed his residual capacity and was unable, despite 

those efforts, to eliminate or mitigate his wage loss.” 

 1

 Favinger included in his claim the period from May 

16, 2003 through May 25, 2003 when Ford experienced a 

temporary shut down and the period from June 30, 2003 to 

July 14, 2003 when Ford had its annual shut down. 

Favinger also sought temporary total disability 

benefits from June 2 through June 9, 2003. Ford agreed 

that Favinger was entitled to the claimed compensation for 

that one time period. 
3

Favinger sought review of the deputy commissioner’s 

decision by the Workers’ Compensation Commission 

(Commission). The Commission awarded Favinger temporary 

partial disability benefits for various post-injury weeks 

in which his weekly wages were less than his pre-injury 

average weekly wages. The Commission concluded that 

Favinger did not have “to prove that comparable employees 

continued to receive overtime opportunities . . . [because] 

they were free to pursue other employment opportunities if 

they became dissatisfied with less frequent overtime[; 

whereas, Favinger] was partially disabled as a result of a 

compensable work injury, and thus precluded from seeking 

employment comparable to his pre-injury position with other 

employers.” 

Ford appealed the Commission’s decision to the Court 

of Appeals of Virginia. In an unpublished opinion, the 

Court of Appeals held that the Commission erred by failing 

to address whether Favinger had “adequately marketed his 

residual work capacity in order to recoup his lost 

overtime.” Ford Motor Co. v. Favinger, Record No. 0112-05-

1, slip op. at 2 (October 11, 2005). The Court of Appeals 

thus reversed the award of benefits and remanded the case 

to the Commission for determination of that question. Id. 
4

On remand, the Commission noted that Favinger 

testified during the hearing before the deputy commissioner 

that he did not seek other employment during the periods 

when Ford did not offer him overtime. The Commission, 

however, found that it was “unreasonable to expect 

[Favinger] to try to find additional employment over and 

above the [40] hours he was already working for the 

employer. Such work would likely interfere with any 

overtime which might become available.” Thus, the 

Commission concluded “that under the circumstances of this 

case, [Favinger] did not have a duty to market his residual 

capacity during times when the employer did not offer 

overtime to any of its employees.” The Court of Appeals 

subsequently held that Ford’s appeal of the Commission’s 

decision was without merit. Ford Motor Co. v. Favinger, 

Record No. 1254-06-1 (September 19, 2006). 

On appeal to this Court, Ford presents three 

assignments of error: (1) the Court of Appeals erred by 

sustaining the Commission’s finding that Favinger 

established a causal link between his alleged wage loss and 

his work-related injury; (2) the Court of Appeals erred in 

upholding the Commission’s award of benefits because 

Favinger failed to market his residual work capacity; and 

(3) the Court of Appeals erred by affirming the 
5

Commission’s award of benefits that was based on Favinger’s 

post-injury actual weekly wages instead of his post-injury 

average weekly wages. The second issue is dispositive of 

this appeal. 

With regard to Favinger’s marketing of his residual 

work capacity, Ford argues that, since Favinger’s wage loss 

claim is based on the reduced amount of overtime that he 

worked after his injury, he must show that he sought work 

in addition to his normal 40-hour work week and could not 

find such employment because of his work-related injury. 

Ford challenges the Commission’s conclusion that it was 

unreasonable to require Favinger to find work in excess of 

40 hours and contends that there is no evidence to support 

the Commission’s finding that part-time work might conflict 

with Favinger’s duties at Ford. Ford acknowledges that, if 

Favinger had demonstrated that he tried to find additional 

work and that such work conflicted with his job at Ford, he 

would have satisfied his burden to market his residual work 

capacity. 

In response, Favinger argues that his acceptance of a 

light duty job procured by Ford and his willingness to work 

overtime when offered by Ford demonstrates that he marketed 

his residual capacity to work more than 40 hours per week. 

He also contends that it would be unreasonable to expect 
6

him to work part-time for another employer because the 

hourly rate of pay would be significantly lower than the 

rate he earned working overtime at Ford. And, if he 

accepted such a position, he would not be available to work 

overtime when Ford offered it to him. In short, Favinger 

contends that he “marketed himself by simply being 

available, upon a moment’s notice, to work overtime” at 

Ford. 

An award by the Commission is conclusive and binding 

as to all questions of fact. Code § 65.2-706(A); Bass v. 

City of Richmond Police Dep’t, 258 Va. 103, 114, 515 S.E.2d 

557, 563 (1999); Stenrich Group v. Jemmott, 251 Va. 186, 

192, 467 S.E.2d 795, 798 (1996). The determination as to 

whether an employee seeking temporary partial disability 

benefits has made a reasonable effort to market his 

residual work capacity falls within the Commission’s factfinding, and if the Commission’s factual conclusion on that 

question is supported by credible evidence, it will not be 

disturbed on appeal. Wall Street Deli, Inc. v. O’Brien, 32 

Va. App. 217, 220-21, 527 S.E.2d 451, 453 (2000). The 

Commission’s factual findings, however, are “‘conclusive 

and binding’ only to the extent that they are ‘predicated 

upon evidence introduced or appearing in the proceedings.’” 

Uninsured Employer’s Fund v. Gabriel, 272 Va. 659, 664, 636 
7

S.E.2d 408, 411 (2006) (quoting Vanzant v. Southern Bending 

Co., 143 Va. 244, 246, 129 S.E. 268, 268 (1925)). If the 

Commission’s findings of fact are not based on credible 

evidence, “its findings are not binding and the question 

presented becomes one of law.” Great Atlantic & Pacific 

Tea Co. v. Robertson, 218 Va. 1051, 1053, 243 S.E.2d 234, 

235 (1978) (citing Conner v. Bragg, 203 Va. 204, 207, 123 

S.E.2d 393, 395 (1962)); accord Gabriel, 272 Va. at 664, 

636 S.E.2d at 411; American Motorists Ins. Co. v. Summers, 

183 Va. 428, 431, 32 S.E.2d 673, 674 (1945). 

Pursuant to Code § 65.2-502(A), an employer is 

required to pay to an employee with partial incapacity for 

work resulting from an injury “a weekly compensation equal 

to 66 2/3 percent of the difference between his average 

weekly wages before the injury and the average weekly wages 

which he is able to earn thereafter.” A partially disabled 

employee who refuses “employment procured for him suitable 

to his capacity” loses entitlement to certain benefits 

“during the continuance of such refusal, unless in the 

opinion of the Commission such refusal was justified.”2 

 2

 We have stated that the legislative intent behind 

former Code § 65.1-63 (now Code § 65.2-510) is “to 

encourage injured employees to seek selective employment 

rather than to remain unemployed unless the employer finds 

such employment for them.” Big D Quality Homebuilders v. 

Hamilton, 228 Va. 378, 382, 322 S.E.2d 839, 841 (1984). 
8

Code § 65.2-510; see Washington Metropolitan Area Transit 

Authority v. Harrison, 228 Va. 598, 601, 324 S.E.2d 654, 

656 (1985). 

In a claim for temporary partial disability, the 

employee “[has] the burden of proving that he [has] made a 

reasonable effort to procure suitable work but [is] unable 

to market his remaining work capacity.” Harrison, 228 Va. 

at 601, 324 S.E.2d at 656; see also White v. Redman Corp., 

41 Va. App. 287, 292, 584 S.E.2d 462, 464 (2003) (“A 

partially incapacitated employee . . . is not entitled to 

temporary total disability benefits unless he has made a 

reasonable effort to market his remaining capacity for 

work.”); Holly Farms Foods, Inc. v. Carter, 15 Va. App. 29, 

42, 422 S.E.2d 165, 171 (1992) (“A claimant still has the 

burden of proving his entitlement to benefits, and to do 

that ‘he [has] the burden of proving that he [has] made a 

reasonable effort to procure suitable work but was unable 

to market his remaining work capacity.’ ”) (alterations in 

original) (citation omitted); Manis Constr. Co. v. 

Arellano, 13 Va. App. 292, 294, 411 S.E.2d 233, 234 (1991) 

(“As a condition to benefits under the Virginia Workers’ 

Compensation Act . . . , a partially disabled employee must 

make a reasonable effort to market his remaining work 

capacity.”); National Linen Serv. v. McGuinn, 8 Va. App. 
9

267, 270, 380 S.E.2d 31, 33 (1989) (“[A claimant] who seeks 

compensation of the wage differential between his new and 

his old jobs[] has the burden of proving that he has made a 

reasonable effort to market his full remaining work 

capacity.”). 

There are no fixed guidelines for determining what 

constitutes a “reasonable effort” by an employee to market 

residual work capacity. Great Atlantic & Pacific Tea Co. 

v. Bateman, 4 Va. App. 459, 467, 359 S.E.2d 98, 102 (1987). 

An employee must “exercise reasonable diligence in seeking 

employment” and the reasonableness of an employee’s effort 

will be determined on a case by case basis, taking into 

account “all of the facts and surrounding circumstances.” 

Id. Some of the criteria, however, that should be 

considered include: 

(1) the nature and extent of [the] employee’s 

disability; (2) the employee’s training, age, 

experience, and education; (3) the nature and 

extent of [the] 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 [the] employee’s 

capacity to find suitable employment. 

National Linen Service, 8 Va. App. at 272, 380 S.E.2d at 34 

(footnotes omitted); accord Metropolitan Washington 

Airports Auth. v. Lusby, 41 Va. App. 300, 317, 585 S.E.2d 

318, 326 (2003); Wall Street Deli, 32 Va. App. at 220, 527 
10

S.E.2d at 453. In sum, an employee “must present ‘some 

evidence that he [has] engaged in a good faith effort to 

obtain work within the tolerance of his physical condition’ 

and has failed to find a job, either due to his injury or 

because no such work was available in the community.” 

National Linen Service, 8 Va. App. at 271, 380 S.E.2d at 34 

(quoting Dunkin Donuts of America, Inc. v. Watson, 366 A.2d 

1121, 1126 (Me. 1976) (emphasis added)). 

Favinger, however, did not make a reasonable effort to 

market his residual work capacity; in fact, he made no 

effort. When testifying before the deputy commissioner, 

Favinger was asked: “When you were losing that overtime did 

you seek any other employment to pick up that overtime?” 

Favinger responded: “No, sir.” 

Despite this testimony, the Commission concluded that 

it was “unreasonable to expect” Favinger to market his 

residual capacity beyond his 40-hour work week at Ford and 

that, if he did so, such overtime work “would likely 

interfere with any overtime which might become available” 

at Ford.3

 The Commission’s conclusion, however, is not 

 3

 The two cases cited by the Commission to support its 

conclusion, Carr v. Virginia Electric & Power Co., 25 Va. 

App. 306, 487 S.E.2d 878 (1997), and Consolidated Stores 

Corp. v. Graham, 25 Va. App. 133, 486 S.E.2d 576 (1997), 

did not address the issue of an employee’s responsibility 
11

supported by any evidence that Favinger actually attempted 

to market his residual work capacity and that available 

jobs within his capacity would have interfered with his 

duties at Ford, including his ability to accept overtime 

work when offered by Ford. 

Before his injury, Favinger routinely worked 50-hour 

weeks at Ford, and he now claims a wage loss for the 

overtime that he did not receive during certain weeks while 

performing his light duty job. The fact that he accepted 

the light duty job and was willing to work overtime when 

Ford offered it did not negate the requirement that he make 

a reasonable effort to market his residual work capacity, 

i.e., the additional 10 hours of overtime.4

 In the absence 

of a reasonable effort to market his residual work 

capacity, Favinger is not entitled to temporary partial 

disability benefits for his alleged loss of overtime 

earnings. See Pocahontas Fuel Co. v. Agee, 201 Va. 678, 

681, 112 S.E.2d 835, 838 (1960) (employee was not entitled 

to benefits because he “never applied for work elsewhere 

either before or after he learned that he had silicosis, 

and there [was] no proof that he could not have marketed 

 

to make a reasonable effort to market residual work 

capacity. 
12

his remaining capacity for work”); Pocahontas Fuel Co. v. 

Barbour, 201 Va. 682, 684, 112 S.E.2d 904, 906 (1960) 

(reversing Commission’s award of benefits because there was 

no proof either that the employee made “a reasonable effort 

to procure work” or that he was unable to market his 

residual capacity); see also Island Creek Coal Co. v. 

Fletcher, 201 Va. 645, 648, 112 S.E.2d 833, 835 (1960) 

(employee was awarded compensation because he demonstrated 

that “he was willing to accept other employment and did 

make an effort to work outside the mine but was unable to 

perform that work”). 

 For these reasons, we conclude that the Commission’s 

award of temporary partial disability benefits to Favinger 

was not “predicated upon evidence introduced or appearing 

in the proceeding.” Vanzant, 143 Va. at 246, 129 S.E. at 

268. We will, therefore, reverse the judgment of the Court 

of Appeals and enter final judgment here in favor of Ford. 

Reversed and final judgment. 

 4

 Favinger’s argument concerning the wage differential 

if he accepted overtime work with an employer other than 

Ford is not supported by any evidence in the record.