COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Kelsey and McClanahan Argued by teleconference

NORFOLK ADMIRALS AND FEDERAL INSURANCE COMPANY MEMORANDUM OPINION ∗ BY v. Record No. 0050-05-4 JUDGE LARRY G. ELDER NOVEMBER 1, 2005 TY A. JONES

FROM THE VIRGINIA WORKER S’ COMPENSATION COMMISSION Robert C. Baker, Jr. (Dobbs & Ba ker, on brief), for appellants. Benjamin T. Boscolo (W. David Falcon, Jr.; Chasen & Boscolo, P.C., on brief), for appellee.

The Norfolk Admirals (employer) and Federa l Insurance Company a ppeal a decision of the Workers’ Compensation Commission awarding benefits to Ty A. Jones (claimant). Employer contends the commission erred in finding that: (1) cl aimant sustained a compensable injury by accident arising out of and in the cour se of employment while voluntarily engaging in a fight; (2) claimant’s disability was not cumulativ e; and (3) claimant was justified in failing to market his residual capacity. For the reasons that follow, we affirm the commission’s decision.

I.

BACKGROUND On appeal from a decision of the commissi on, “we view the evidence in the light most favorable to the prevailing party” and grant that party the benefit of all reasonable inferences. Grayson Sch. Bd. v. Cornett , 39 Va. App. 279, 281, 572 S.E.2d 505, 506 (2002).

∗ Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - So viewed, the record show s that on March 29, 2002, claimant, a right-hand-dominant, twenty-two-year-old male, was employed by the No rfolk Admirals as a hockey player, playing as a right-wing power forward. On that date, claimant took the ice and, following his coach’s instructions, instigated a fight with an aggressive opposing player. As a result of the fight, claimant was sent to the penalty box, at which time he noticed that his right shoulder was sore

and he could not lift his arm. At the end of th e game, claimant went immediately to the team doctor to report the injury. Following the injury, claimant took several da ys off with the agreement of employer’s head athletic trainer, Kevin “Stu” Bender. Clai mant’s agent recommended th at he not participate in the playoffs because he had been injured and did not yet have a contract for the 2002/2003 hockey season. Despite continuing problems, claima nt played in the first round of the playoffs, but the team lost in that round, and the season ended on April 20, 2002. On April 1, 2002, claimant sought treatment fr om Dr. R. Brick Campbell, an orthopedic surgeon “who worked with the employer’s hockey team and supervised the employer’s trainer, [Kevin “Stu”] Bender.” Dr. Campbell recomm ended physical therapy, but when claimant’s condition did not improve, Dr. Campbell ordered a right shoulder MRI, which was performed on April 24, 2002. As a result of the MRI, Dr. Campbe ll diagnosed lesions of the anterior, inferior, and posterior labrum. On May 16, 2002, Dr. Campbell performed surgery on the claimant’s right shoulder,

which included the insertion of six screws. A copy of the operative report was provided to employer’s head trainer, Stu Bender. Following the surgery, Dr. Campbell told claimant not to “bring” his shoulder “[past] probabl y 60 degrees up,” to wear a sli ng for six months in order to let the shoulder heal, and to “t ake six months off” from work “and then see how it feels.” Claimant wore the sling for “almost the full six m onths,” taking it off only when he went to bed.- 3 - Dr. Campbell also prescribed an intensive “rehab protocol” and predicted cl aimant would be able to return to hockey on November 15, 2002. By early June 2002, claimant returned home to Spokane, Washington. There, he came under the care of Physical Therapist Matthew Gores and Orthopedic Physician Russell VanderWilde, who helped him implement Dr. Cam pbell’s rehab protocol. Gores agreed with Dr. Campbell’s prognosis, opining that claimant’s “[o]verall rehabil itation potential is excellent,”

and he recommended “skilled rehabilitative ther apy in conjunction wi th a home exercise program,” which was to last “until [claimant] reports for training camp.” Claimant testified that he was “involved in rehab . . . five days a week . . . [so he] couldn’t wo rk during [the] period of time” through November 15, 2002. He admitted, how ever, that during the summer months, he was able to take a trip to Alaska, where he fished for “minor little fish” like “trout” and aggravated his shoulder injury whil e pushing himself out of a rental car. In mid-July, he reported doing “some putting and chipping,” saying that “it went pre tty good,” but when he asked Dr. VanderWilde on July 19, 2002, if he could e ngage in such activities, Dr. VanderWilde “would not clear him for [such activ ities]” at that time. The record is silent as to whether claimant engaged in golf-related activities again prior to mid- September, when Dr. VanderWilde opined he could play golf. Both Physical Therapist Gores and Dr. Va nderWilde routinely provided copies of their office and progress notes to employer’s head traine r, Stu Bender. Claimant and Gores remained in contact with Bender, who told claimant “to con tinue to take it really ea sy.” Bender also gave

advice on claimant’s rehabilitation and the types of reha bilitation and leisure activities in which he thought claimant should or should not engage. Claimant’s rehabilitation with Gores included range of motion work, strength training, a nd aerobic conditioning. When Dr. VanderWilde opined on August 30, 2002, that claimant could “pla y golf” and “start some stick work” “in a- 4 - non-contact situation” in mid-Sept ember, Bender “told [claimant] not to do these things yet.” On September 27, 2002, Dr. VanderWilde noted that claima nt “look[ed] good for return,” but that he needed to “continue to work on his strengthening and then follow-up with Dr. Campbell prior to returning to competition in mid-November.” On October 24, 2002, Physical Therapist Gores noted that he and claimant pl anned to review claimant’s “w orkout book from the Blackhawks,” and on November 4, 2002, claimant noted he had been trying to get in touch with Stu Bender and that he “need[ed] to be ready to fight” when he returned to the Admirals because “[t]hey have no toughness on the team.” Claimant continued to participate in rehabi litation through at least November 15, 2002. Dr. VanderWilde opined claimant was “totally di sabled from professional hockey through that date,” but said he still “anticipate[d]” that claimant “will return to his pr ofessional hockey career without any long-term restrictions .” For reasons not apparent fr om the record, claimant did not return to play for the Norfolk Admirals and began to play for the Anchorage Aces in February

2003. On the issue of causation, Dr. Campbell opined that the fight claimant participated in on March 29, 2002, materially aggravat ed a previous injury to the claimant’s right shoulder. Dr. VanderWilde also opined that the treatment required for claimant’s shoulder in 2002 was caused by his March 29, 2002 injury. Claimant ac knowledged that he had pre-existing right shoulder problems but said that he had not su ffered from any such problems during the three months prior to March 29, 2002 and that the type of pain he expe rienced after the fight on that date was more severe than any shoulde r pain he had experienced previously. Claimant sought medical and disability benefi ts, including temporary total disability for the period from April 20 through November 15, 2002. Following a hearing on June 1, 2004, the deputy awarded the requested benefits. He conc luded claimant suffered an injury by accident- 5 - arising out of and in the course of his employment and that cl aimant was entitled to temporary total disability compensation through November 15, 2002, when claimant was released back to work as a hockey player. On employer’s request for review, the commi ssion agreed with the deputy’s conclusion

that claimant’s altercation duri ng the March 29, 2002 hockey game ar ose out of and in the course of his employment and constituted an “accident” as contemplated by the Act. It also held credible evidence supported the find ing that claimant in fact suffered an injury that “materially aggravated his pre-existing s houlder condition.” Finally, on the issue of marketing, the

commission held as follows: [W]e conclude that the claimant was not required to market any residual physical capacit y that he may have had from May 16 to November 15, 2002, because of his profession as a hockey player and his reasonable belief that he w ould be able to return to that profession following his surgery. Th e record shows that claimant engaged in a strenuous rehabilita tion program during the months following his surgery in an effort to return to his pre-injury job as a hockey player. The record also reflects that the claimant participated in this program at the direction of the employer’s doctor, Dr. Campbell. Thus, gi ven the unique circumstances of this case, we conclude that the claimant’s need to concentrate on strengthening himself during the months following his shoulder surgery and preceding the next hockey season affected his capacity to find alternative employment from May 16 through November 15, 2002, and relieved him of any obligation of seeking alternative employment during this peri od as a condition of receiving disability compensation. The commission affirmed the deputy’s award of benefits, and this appeal followed.- 6 - II.

ANALYSIS A. Injury by Accident Arising Out of and in the Course of Employment “In order to establish entitlement to compen sation benefits, the claimant must prove, by a preponderance of the evidence, [(1)] an injury by accident which arose [(2)] out of and [(3)] in the course of his employment.” Classic Floors, Inc. v. Guy , 9 Va. App. 90, 95, 383 S.E.2d 761, 764 (1989); see also Code § 65.2-101. Employer argues that because claimant was the aggressor in voluntary combat, the injury did not arise out of his employment. Claimant argues that he suffered an accidental injury as a result of a fight he engaged in at the instruction of his coach. He claims that fighting is a part of the history and game of hocke y and that it constitutes a hazard to which he was exposed to a degree beyond that of the public at large. 1. Injury by Accident Employer argues that intentional actions by any design are not accidental and, thus, are not compensable. The Workers’ Compensation Ac t does not define “injury by accident.” That phrase, however, has been defined by judicial interpretation. In Southern Express v. Green , 257 Va. 181, 509 S.E.2d 836 (1999), the Supreme Court stated that, to establish an “injury by accident ” a claimant must prove (1) that the injury appeared suddenly at a particular time and place and upon a particular occasion, (2) that it was caused by an identifiable incident or sudden participating even t, and (3) that it resulted in an obvious mechanical or structural change in the human body.

Id. at 187, 509 S.E.2d at 839. Here, the commissi on found evidence to suppor t these factors, and

we agree. The particular time, place, and occasion of clai mant’s injuries was at the conclusion of a fight during the hockey game in which claimant played on March 29, 2002. The identifiable or precipitating event was the fight, which claimant instigated with a player on the opposing team- 7 - on the instructions of his coach. Finally, claima nt’s doctor stated that the fight “materially aggravated” claimant’s right s houlder injury, causing lesions of the anterior, inferior, and posterior labrum of the right shoulder, which indi cates a mechanical or st ructural change that resulted in his injury. Thus, credible eviden ce supports the commission’ s finding that claimant sustained an injury by accident within the meaning of the Act rather than an impairment resulting

from cumulative trauma. 2. Arising out of Employment The Supreme Court defined “aris ing out of employment” in Combs v. Virginia Electric &

Power Co. , 259 Va. 503, 525 S.E.2d 278 (2000). “In Virginia we apply an ‘actual risk test,’ meaning that the employment must expose the employee to the particular danger causing the injury, notwithstanding the public’s exposure generally to similar risks.” Id. at 510, 525 S.E.2d at 282. In cases of assault, the motive of the actor committing the assault is also examined. See Hopson v. Hungerford Coal Co. , 187 Va. 299, 307, 46 S.E.2d 392, 396 (1948); Farmers Mfg.

Co. v. Warfel , 144 Va. 98, 101-02, 131 S.E. 240, 241 (1926). “[I]f there is a causal connection between [the] injury and the conditions of [the claimant’s] employment, then [the] injury arose out of [that] employment.” Combs , 259 Va. at 509, 525 S.E.2d at 282.

In Pro-Football v. Uhlenhake , 37 Va. App. 407, 558 S.E.2d 571 (2002), aff’d , 265 Va. 1, 574 S.E.2d 288 (2003), this Court affirmed the co mmission’s decision to award benefits to a professional football player because the player’s injuries resulted from, or were hastened by, the conditions of his employment, which exposed h im to hazards to a degree beyond that of the public at large. Pro-Football argued, as employe r argues here, that the claimant was seeking to recover for injuries resulting from voluntary pa rticipation in activities. However, the Court found, as the commission in this case found, that cl aimant was engaged in an activity that was required by his employment. Id. at 413, 558 S.E.2d at 574-75.- 8 - Indeed, in the case at bar, the evidence established that, at the time claimant was injured, he was performing a task that he was employed to perform. The commission found that fighting is an integral part of the game of hockey and that claimant’s job on employer’s hockey team was to be an “enforcer.” This conclusion was supported by the deposition testimony of Lawrence J. Landon, Executive Director of the Professional Hock ey Players’ Association, who stated fighting is a part of hockey and is not prohibited by the league. He testified th at the league rule on fighting is just a “policing mechanism or contro l mechanism because [fighting] is allowed.” He said, “All fighting is part of th e game.” He also testified that , in fighting, claimant was doing what he was paid to do; that injury due to figh ting is a foreseeable risk for any player in any game; and that games without fighting are the excep tion rather than the rule. The evidence also included claimant’s testimony that his coach told him to “go get” a particular player on the opposing side, which claimant understood to mea n, “go fight him.” A lthough employer argues that claimant’s fighting constituted willful misconduc t, employer failed to rebut the evidence that fighting was a part of claimant’s employment. 1 Employer argues that the commission e ngaged in overreaching and improperly took judicial notice in finding that fight ing is a part of the game of hoc key. We disagree. No judicial

notice was taken. The commissi on considered the ample evidence before it on the issue of

1 Code § 65.2-306 provides that no compensation shall be awarded to a claimant for an injury caused by: “1. The employee’s willful misconduct or . . . 2. The employee’s attempt to injure another . . . .” Commission Rule 1.10 requ ires that an employer intending to rely upon a willful misconduct defense pursuant to Code § 65.2-306 shall notify the employee and the commission no later than 15 days prior to the hear ing and provide “a statement of the particular act relied upon as showing willful misconduct.” This is an affirmative defense, imposing upon the employer the burden of proving that claimant ’s conduct, which caused his injury, was in willful disregard of a reasonable rule established by employer. Code § 65.2-306(B); see also Brockway v. Easter , 20 Va. App. 268, 271, 456 S.E.2d 159, 161 (1995). Although employer contends that claimant was engaged in willful misconduct, it did not raise or rely on Code § 65.2-306 and failed to rebut the evidence that cl aimant was engaged in an activity required by his employment when he was injured.- 9 - fighting in hockey. The evidence supports the co mmission’s decision that claimant’s injury can fairly be traced to his employment as a contribut ing proximate cause. “[W]hether an employee is guilty of willful misconduct and whether such misconduct is a proximate cause of the employee’s accident are issues of fact.” Brockway v. Easter , 20 Va. App. 268, 272, 456 S.E.2d 159, 161 (1995). Although claimant conceded that fighting is voluntary and that he instigated the fight, the fight was not a personal undertakin g but instead was direct ed against the other player as part of claimant’s em ployment relationship and in furt herance of employer’s business. Compare Richmond Newspapers, Inc. v. Hazelwood , 249 Va. 369, 374-75, 457 S.E.2d 56, 59 (1995) (holding that “goosing” of fellow newspaper employee constituted an assault that “was of a personal nature and not directed against the recipients as empl oyees or in furtherance of the employer’s business” and that resulting injury thus did not arise out of employment). 3. In the Course of Employment The phrase, “in the course of employment,” m eans that the injury t ook place “‘within the period of employment, at a place where the em ployee may reasonably be, and while he is reasonably fulfilling duties of his employment or engaged in doing something incidental

thereto.’” Combs , 259 Va. at 511, 525 S.E.2d at 283 (quoting Bradshaw v. Aronovitch , 170 Va. 329, 335, 196 S.E. 684, 686 (1938)). Claimant’s injury occurred while he was employed as a hockey player, during a hockey ga me, and while he followed his coach’s orders. Thus, ample evidence supported the commission’s finding that claimant was in jured in the course of his employment. B. Cumulative Trauma versus Injury Aggravating Pre-Existing Condition Employer argues that claimant’s injury was a result of cumulative trauma and, therefore, is not compensable. However, “[w]hen an injury sustained in an . . . accident accelerates or aggravates a pre-existing condition, death, or disability resulti ng therefrom is compensable under- 10 - the Workers’ Compensation Act.” Ohio Valley Constr. Co v. Jackson , 230 Va. 56, 58, 334 S.E.2d 554, 555 (1985); see also Lilly v. Shenandoah’s Pride Dairy , 218 Va. 481, 488, 237 S.E.2d 786, 790 (1977). The commission relied on th e diagnosis of Dr. Campbell, who stated that the injury claimant sustained in the Marc h 29, 2002 fight “materially aggravated” a previous injury. It also relied on the statement of Dr. Va nderWilde that claimant’s need for treatment was necessitated by his March 29, 2002 s houlder injury. Finally, it reli ed upon claimant’s testimony that, although he had a pre-exis ting shoulder injury, he had not experienced any problems with his shoulder during the three mont hs prior to March 29, 2002 and that the pain he suffered after the March 29, 2002 fight was more severe than any of the pain he had experienced previously. Therefore, the record contains credible evidence to suppor t the commission’s finding that claimant suffered an injury to his right shoulder during the fight on March 29, 2002 that “materially aggravated his pr e-existing shoulder condition.” C. Residual Work Capacity Employer also argues that the commission erred in finding claimant was not required to

market his residual work capacity. An employee claiming entitlement to temporary total disability benefits must take reasonable measures to market any residual work capacity he may

have. Great Atl. & Pac. Tea Co. v. Bateman , 4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987). “[I]t is not required that a work ers’ compensation claimant who suffers partial disability be informed by his physician that he may undertake restricted work in order for him to be obligated

to make reasonable efforts to market his residual skills.” Ridenhour v. City of Newport News , 12 Va. App. 415, 416, 404 S.E.2d 89, 89 (1991). To determine the reasonableness of an employee’s efforts to market, the commission

should consider (1) the nature and extent of employee’s disability; (2) the employee’s training, age, experience, and education; (3) the nature- 11 - and extent of employee’s job sear ch; (4) the employee’s intent in conducting his job search; (5) the ava ilability of jobs in the area suitable for the employee, consider ing his disability; and (6) any other matter affecting employ ee’s capacity to find suitable employment.

Nat’l Linen Serv. v. McGuinn , 8 Va. App. 267, 272, 380 S.E.2d 31, 34 (1989). “What is reasonable in one area, or in one industry, or even in one seas on might not be reasonable in another. . . . [W]hat is re asonable in a given case will de pend upon all of the facts and surrounding circumstances.” Bateman , 4 Va. App. at 467, 359 S.E.2d at 102. Ultimately, “[t]he

commission . . . determines which of these or ot her factors are more or less significant with regard to a particular case.” McGuinn , 8 Va. App. at 272-73, 380 S.E.2d at 34-35. We treat the

commission’s factual determinations as bindi ng if supported by credible evidence. Code § 65.2-706(A); Wall Street Deli v. O’Brien , 32 Va. App. 217, 220-21, 527 S.E.2d 451, 453 (2000). In this case, the commission concluded that claimant was not requ ired to market his residual physical capacit y during the benefit period. Th e commission found that although claimant clearly was capable of “rather significant physical activity” in the months following his surgery, employer’s physician, Dr. Campbell, prescr ibed an intensive “reh ab protocol” designed to return claimant to his pre-injury position as a professional hockey player within six months of his May 16, 2002 shoulder surgery. Physical Therapist Gores and Orthopedic Physician VanderWilde, who oversaw claimant’s rehabilitati on when he returned to his home in Spokane, Washington, in late May or early June 2002, bot h also opined that cl aimant’s prognosis for recovery was “excellent” and that he likely w ould be able to return to his position as a professional hockey player within th e time frame given by Dr. Campbell. Compare Bateman , 4 Va. App. at 465-66, 359 S.E.2d at 101-02 (holding employee had duty to market residual capacity by seeking new employment where he had received permanent partial impairment rating- 12 - to injured leg and physician expressly advised him to seek a new, preferably sedentary, position). 2 Although claimant experienced some minor setbacks, he progressed toward Dr. Campbell’s rehabilitative goal in a reasonably timely fashion. During this time, employer’s head trainer, Stu Bende r, maintained contact with clai mant and monitored claimant’s participation in Dr. Campbell’s rehab protocol. Bender told claimant “to continue to take it really easy” and gave advice on th e types of rehabilitation and le isure activities in which he thought claimant should or should no t engage. Finally, claimant tes tified that he participated in Dr. Campbell’s rehabilitation protoc ol five days per week and that the level of his participation prevented him from seeking or performing other employment during the period at issue. 3 Thus, evidence of claimant’s prognosis for a full recovery prior to the next hockey season, combined with evidence of the intensity of his “rehab protoc ol” and the level of involvement of employer’s agents in overseeing th e rehabilitative process, constitute credible evidence supporting the commission’s finding that claimant had no duty to market his residual capacity under the unique facts of this case.

2 The dissent cites Hall v. C.R. Hudgins Plating, Inc. , 70 O.I.C. 237, 239 (1991), for the proposition that a “claimant’s anticipation of returning to employment is not sufficient justification for failing to mark et remaining work capacity.” Hall is factually distinguishable in that Hall returned to work in a light-duty positio n for her pre-injury employer, lost her job in an economic layoff, and then failed to market her residual capacity while her doctor continued to recommend light-duty work.

3 The dissent cites Knott v. Hampton Roads Mariners, L.L.C. , 2005 VA Wrk. Comp. LEXIS 242 (2005), as a case in which the commission “den[ied] benefits to a professional soccer player who did not adequately ma rket his residual capacity.” Knott is factually distinguishable in that, although the claimant underwent physical therapy, no evid ence indicated the claimant’s physicians prescribed intensive, time-consuming re habilitation that prevented him from working or that his employer anticipated Knott would return to his pre-injury employment for employer. Further, the evidence indicated th at Knott testified he was a college graduate with a degree in physics and that he actually looked for work, although he kept no records of the potential employers he contacted.- 13 - III. Because credible evidence supports the commi ssion’s decision that claimant sustained a compensable injury by accident arising out of and in the course of employment, that his disability was not cumulative, and that he had no duty to market his resi dual capacity under the unique facts of this case, we affirm the commission’s award.

Affirmed.- 14 - McClanahan J., concurring, in part, and dissenting, in part.

I concur in Parts II A and B of the majority opinion. Ho wever, I would reverse and

vacate the commission’s award of temporary total benefits from May 16 to November 15, 2002,

because there is no credible evid ence that the claimant made a ny effort to market his residual work capacity. A claimant seeking temporary total disability benefits, while unable to perform the job at which he was injured, may still possess an ab ility to perform some kind of employment, rendering him only partially incapacit ated. In its decision, the comm ission concluded “that th[is] claimant was not completely incapacitated from the time of his surgery on May 16, 2002, until November 15, 2002.” It found that the evidence clearly shows that the claimant was capable of performing rather significant physical activity during the months following his surgery – as reflected by his ability to go fishing in August of 2002, the type of physical activity he performed when engaging in Dr. Campbell’s “rehab protocol,” and Dr. VanderWilde’s opinion that the claimant would be capable of shooting on the ice by mid-September 2002. Neither party contested the commission’s findi ng that claimant was partially incapacitated.

In order to establish his entitlement to bene fits, a partially incap acitated claimant must prove that he made a reasonable effort to market his residual work capacity. See Washington Metropolitan Area Trans it Authority v. Harrison, 228 Va. 598, 601, 324 S.E.2d 654, 656 (1985);

Island Creek Coal Co. v. Fletcher , 201 Va. 645, 648, 112 S.E.2d 833, 835 (1960); see also Great

Atl. & Pac. Tea Co. v. Bateman , 4 Va. App. 459, 464, 359 S.E.2d 98, 101 (1987) (An employee claiming entitlement to temporary total benefits must take reasonable measures to secure suitable work.)

. 4 The commission also acknowledged this legal principle applied in this case.

4 Generally, there are only three exceptions to the duty to market, and none of these exceptions apply in this case. First, if the cl aimant is totally disabl ed, he does not have any residual capacity to market. See e.g. , Georgia Pac. Corp. v. Dancy , 17 Va. App. 128, 134, 435- 15 - In spite of finding that the claimant was onl y partially incapacitated and was “capable of performing rather significant physical activity,” the commission then inconsistently concluded “that the claimant was not required to market any residual capacity that he may have had from May 16 to November 15, 2002, because of his prof ession as a hockey player and his reasonable

belief that he would be able to return to that profession following his surgery.” I am not aware of any exception in the law that a person in prof essional sports is not required to market, see Knott v. Hampton Roads Mariners, L.L.C. , 2005 VA Wrk. Comp. LEXIS 242 (2005) (denying benefits to a professional soccer player who did not adequately market hi s residual work capacity), even if he reasonably believes that he may be able to return to his profession, see Hall v. C.R. Hudgins Plating, Inc. , 70 O.I.C. 237, 239 (1991) (holding that clai mant’s anticipation of returning to employment is not sufficient justif ication for failing to market remaining capacity to work). As a matter of law, a claimant who is partially incap acitated has the burden of proving that he made a

reasonable effort to market his residual work capacity. Harrison , 228 Va. at 601, 324 S.E.2d at

655.

Once it is determined that the claimant is required to market, then the commission must determine whether the steps the claimant took to find alternative employment were reasonable, using the factors set forth in Nat’l Linen Serv. v. McGuinn , 8 Va. App. 267, 380 S.E.2d 31 (1989). [I]n defining what would be considered a reasonable effort at obtaining employment . . . the employee must present “some evidence that he had engaged in a good faith effort to obtain work within the tolerance of his physic al condition” and has failed to

S.E.2d 898, 901 (1993). Second, if the claimant is under a de facto award, where the employer is paying the claimant and, thus, is not contesting the compensability of the claim, the claimant is under no obligation to market. See Nat’l Linen Serv. v. McGuinn , 5 Va. App. 265, 272, 362 S.E.2d 187, 190 (1987) ( en banc ). Or, third, if the claimant is seeking benefits for such a brief period of time (i.e., days or weeks, not months), that it makes no sense to require him to market, he is not required to do so. Holly Farms Foods, Inc. v. Carter , 15 Va. App. 29, 42, 422 S.E.2d 165, 172 (1992).- 16 - find a job, either due to his injury or because no such work was available in the community.

Id. at 271, 380 S.E.2d at 33-34 (quoting Dunkin Donuts of Am., Inc. v. Watson , 366 A.2d 1121 (Me. 1976)). In this case, it is clear from the record, and uncontested, that the claimant did not

make any effort to obtain work within the tolerance of his physical condition. “Inasmuch as the

record establishes an absence of effort on hi s part, it fails to suppor t the commission’s finding

that his efforts were reasonable.” Wall St. Deli, Inc. v. O’Brien , 32 Va. App. 217, 221, 527 S.E.2d 451, 453 (2000); see also Bateman , 4 Va. App. at 468, 359 S.E.2d at 103 (reversing an award where “[n]o effort was made to secure an y sedentary job or position for which [claimant] was equipped”). Instead, the commission concluded that:

the claimant’s need to concentrat e on strengthening himself during the months following his shoulder surgery and preceding the next hockey season affected his capacity to find alternative employment from May 16 through November 15, 2002, and relieved him of any obligation of seeking alternative employment during this period as a condition of receiving disability compensation. Such a conclusion clearly re sts on factor (6) of the McGuinn factors: “(6) any other matter affecting employee’s capacity to find suitable employment.” McGuinn , 8 Va. App. at 272, 380 S.E.2d at 34. The McGuinn factors have historically been used to determine reasonableness of a claimant’s efforts, but in th is case of “unique circumstances,” they are being used to create a legal exception to the duty to mark et. Such an application of the factors negates the duty to market requirement and create s an exception that swallows the rule. Cf. Anzualda v.

Commonwealth , 44 Va. App. 764, 774 n.3, 607 S.E.2d 749, 754 n.3 (2005); Jenkins v. Ford

Motor Co. , 27 Va. App. 281, 293, 498 S.E.2d 445, 451 (1998). Furthermore, since most injuries will require some rehabilitation, it is hard to im agine a set of facts that could not somehow fit into the exception; as long as a claimant says he is spending a signifi cant portion of his time in rehabilitation, he is now excu sed from any duty to market.- 17 - Moreover, this case presents no “unique ci rcumstances” that justify an exception to claimant’s legal duty to market. The fact that “claimant engaged in a strenuous rehabilitation program during the months following his surgery in an effort to return to his pre-injury job as a hockey player,” is not enough as a matter of law. Rehabilitati on is often strenuous, but it does not obviate a claimant’s duty to market. As the commission has previously explained, “[s]pending several hours in physic al therapy each week does not relieve a claimant of his burden to market his residual capacity.” Baker v. Virginia Forklift, Inc. , 2003 VA Wrk. Comp. LEXIS 1340 (2003).

While this Court will not disturb the commi ssion’s factual findings if based on credible evidence, “[w]hether credible evidence exists to s upport a factual finding is a question of law which is properly reviewable on appeal.” Hercules, Inc. v. Gunther , 13 Va. App. 357, 361, 412 S.E.2d 185, 187 (1991). In this case, the medical evidence shows that clai mant was required to attend rehabilitative therapy vari ously from two to three times a week, with treatment lasting 13 to 50 minutes per day (consisting of 39 visits) ov er a seven-month period, in conjunction with a daily home exercise program. 5 There is absolutely no evid ence regarding how much time each day he spent exercising at home, as prescribed. Cf. Dennis v. Inglett & Stubbs, Inc. , 2001 VA Wrk. Comp. LEXIS 4280 (2001) (holdi ng that a claimant did not su fficiently market his residual capacity when evidence showed that claimant’s therapy took approximately thirty minutes, three days a week). All the record shows is claimant’s conclusory response that he was involved in rehabilitation five days a week and “c ouldn’t work during that period of time.” It was claimant’s burden to prove why he could not work, which he did not do. See

Dennis , 2001 VA Wrk. Comp. LEXIS 4280 (explain ing that “claimant offered no

5 Of the 39 visits, there were four visits wh ere no rehabilitative treatment was noted. No documentation for Visit 2 existed in the record.- 18 - evidence why he could not arrange physical therapy either prior to or after work hours” and that

his “mere assertion that he could not be em ployed because of the physical therapy, without evidence of actually seeking employment, is not sufficient to establish marketing of his remaining capacity”). There was simply no credible evidence for the commission’s decision; and, likewise, no factual basis for the majority’s conclusion that “the level of [claimant’s] participation [in rehabilitation] prevented him from seeking or performing other employment during the period at issue.” Even under the commission’s own precedent, albeit an extreme example, if claimant was free to market his residual capacity only one hour a day, he was obligated to do so, even if it was “highly unlikely [he] could act ually find work.” Pilson v. J. D. Bassett Mfg. Co. , VWC 191-18-35 (July 27, 2000) (ruling that under Virgin ia law, the claimant, a manufacturing laborer, who was released to wo rk one hour a day with the use of only one hand, was required to “at least attempt to market [her] residual capacity”). The commission’s own precedent belies any conclusion that this case presents “unique circumstances” negating the legal duty to market . Claimant failed to m eet his burden of proving

that he made a reasonable effort to market hi s remaining work capacity. I would hold that “no effort” is not sufficient to satisfy the requireme nt that a claimant make a “reasonable” effort. Accordingly, I would reverse the deci sion of the commission on that issue.