COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bray and Senior Judge Hodges 

Argued at Alexandria, Virginia 

JONES CHEMICAL, INC. 

AND 

ST. PAUL FIRE & MARINE INSURANCE COMPANY 

 MEMORANDUM OPINION* BY 

v. Record No. 1248-96-4 JUDGE WILLIAM H. HODGES 

 APRIL 1, 1997 

JACK DEMPSY PARSON, SR. 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 R. Ferrell Newman (Thompson, Smithers, 

Newman & Wade, on brief), for appellants. 

 Michael W. Heaviside (Lawrence J. Pascal; 

Ashcraft & Gerel, on brief), for appellee. 

 Jones Chemical, Inc. and its insurer (hereinafter 

collectively referred to as "employer") contend that the Workers' 

Compensation Commission ("commission") erred in finding that Jack 

Dempsey Parson, Sr. ("claimant") cured his unjustified refusal of 

selective employment offered by employer. We find as a matter of 

law that no credible evidence supports the commission's finding 

that claimant's job search efforts were sufficient to cure his 

unjustified refusal of selective employment. Accordingly, we 

reverse the commission's decision. 

 On June 2, 1995, claimant sustained compensable injuries to 

his left ankle, hip, and back. Pursuant to an agreement of the 

parties, the commission entered an award on July 14, 1995 for 

 

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

designated for publication. 
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temporary total disability benefits beginning June 10, 1995. On 

August 21, 1995, employer filed a change in condition 

application, alleging that on August 8, 1995, claimant 

unjustifiably refused selective employment offered by employer. 

 On August 3, 1995, Dr. Andre Eglevsky, Parson's treating 

physician, opined that claimant could perform a light-duty 

position proposed by employer, which required claimant to handle 

and clean one-pound valves and allowed him to sit or stand. Dr. 

Eglevsky noted that claimant vehemently objected to returning to 

work of any kind. On August 4, 1995, Dr. Eglevsky approved a job 

description submitted to him by employer for claimant to work as 

a valve rebuilder. The position required that claimant 

alternatively sit, stand, and walk during an eight-hour period, 

frequently squat, frequently use his hands to grasp and 

manipulate items, and lift no more than twenty-five pounds. The 

position involved no bending, crawling or climbing. 

 On August 7, 1995, employer offered claimant the valve 

rebuilder job approved by Dr. Eglevsky. Claimant called employer 

the next morning, and refused to report to work because he was in 

too much pain. Claimant reported for work the next day, but 

employer sent him home because claimant's supervisor was not 

available. Claimant returned to work on August 10, 1995. Before 

starting work, claimant told his supervisor that he was in pain. 

 Claimant left employer's premises after working approximately 

two hours, claiming that he could not continue due to increasing 
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pain. Claimant returned to Dr. Eglevsky that afternoon. Dr. 

Eglevsky noted a normal examination, and he reported that no 

objective evidence substantiated claimant's complaints of 

discomfort. Dr. Eglevsky opined that claimant's "subjective 

complaints of pain should not interfere with his ability to 

return to light work that was prescribed." 

 Based upon this record, the commission ruled that claimant 

had unjustifiably refused light-duty work offered by employer. 

The commission found that the evidence showed that claimant had 

magnified his symptoms, and that he had not made a bona fide

attempt to perform the light-duty job. Claimant did not appeal 

that finding. Therefore, it is binding and conclusive upon us on 

appeal. The commission suspended claimant's outstanding award as 

of August 10, 1995. However, the commission reinstated 

claimant's award of disability benefits beginning August 25, 

1995, finding that he cured his unjustified refusal of selective 

employment by adequately marketing his residual work capacity 

after that date. 

 The standard of review applicable to this case is as 

follows: 

 This appeal does not present a case of 

conflicting evidence or a dispute concerning 

the commission's findings of fact. When the 

issue is the sufficiency of the evidence and 

there is no conflict in the evidence, the 

issue is purely a question of law. This 

Court is not bound by the legal 

determinations made by the commission. "[W]e 

must inquire to determine if the correct 

legal conclusion has been reached." 
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Cibula v. Allied Fibers & Plastics, 14 Va. App. 319, 324, 416 

S.E.2d 708, 711 (1992) (quoting City of Norfolk v. Bennett, 205 

Va. 877, 880, 140 S.E.2d 655, 657 (1965) (citations omitted)), 

aff'd, 245 Va. 337, 428 S.E.2d 905 (1993). 

 The undisputed evidence showed that claimant, who was 

forty-two years old as of the hearing date, had an eleventh grade 

education. He had served in the military. In addition to his 

eight years of work for employer, he had worked as a cook. On 

August 25, 1995, claimant registered with the Virginia Employment 

Commission ("VEC"). He also visited the VEC on October 17, 1995. 

 Claimant submitted a list of forty-one job contacts he made 

between August 26, 1995 and December 20, 1995, the hearing date. 

 Out of the five job contacts claimant made in August, two were 

for laborer positions and one was for a warehouse position. The 

job duties of these three positions, from all indications, would 

have entailed duties far in excess of claimant's residual work 

capacity. 

 During September 1995, claimant made sixteen contacts with 

potential employers. Two of these contacts were for laborer 

positions and four contacts were for stock clerk positions. 

Thus, six out of the sixteen contacts claimant made in September 

entailed job duties which would have apparently exceeded his 

residual work capacity. Three of the businesses claimant 

contacted twice during September, and two of the businesses he 

had previously contacted in August. 
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 During October 1995, claimant made only four contacts with 

prospective employers. Two of the job contacts were for laborer 

positions and the other two were for stock clerk positions, all 

of which, from all appearances, would have entailed job duties 

exceeding claimant's residual work capacity. All four of the 

businesses claimant contacted in October were ones that he had 

previously contacted in August or September. 

 During November 1995, claimant again made only four contacts 

with prospective employers. One of the job contacts was for a 

laborer position, and claimant had previously contacted three of 

the businesses in September. Claimant made no job contacts after 

November 8, 1995 until December 19, 1995, the day before the 

hearing. 

 On December 19, 1995, claimant made four contacts with 

prospective employers. Two of these contacts were for stock 

clerk jobs, and claimant had previously contacted two of the 

businesses in September. On December 20, 1995, the day of the 

hearing, claimant allegedly made eight job contacts and contacted 

a rehabilitation counselor between the opening of business and 

2:00 p.m. One of the jobs was for a laborer position, and 

claimant had previously contacted at least one of the businesses. 

 Finally, we note that the list appears to contain the 

handwriting of several different individuals. 

 Based upon all of these facts, we find that claimant's list 

of alleged job contacts is inherently incredible. Absent the 
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list, the evidence is not sufficient to prove that claimant made 

a good faith effort to market his residual work capacity. 

 "[I]f disability benefits are suspended because an employee 

unjustifiably refuses selective employment offered by the 

employer, the employee, nevertheless, will be entitled to a 

resumption of disability benefits once he has procured comparable 

employment suitable for his disability or has made a good faith 

effort to obtain suitable employment." Virginia Wayside 

Furniture, Inc. v. Burnette, 17 Va. App. 74, 79, 435 S.E.2d 156, 

159 (1993). 

 "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). This 

Court has 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). 

 Once claimant unjustifiably refused the light-duty job 

offered to him by employer, his wage loss was attributable to his 
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refusal and not to his injury. This fact must be taken into 

account in evaluating the claimant's marketing efforts. In light 

of the lack of credible evidence showing claimant's marketing 

efforts, claimant's age, education, and previous work experience, 

Dr. Eglevsky's unequivocal opinion that claimant could perform 

light work, and the lack of any objective evidence of a disabling 

condition, we find as a matter of law that claimant's evidence 

did not sustain his burden of proving that he made a good faith 

marketing effort sufficient to cure his unjustified refusal of 

light-duty work offered by employer. 

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

 Reversed.