COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Felton and Senior Judge Hodges 

Argued at Chesapeake, Virginia 

NORFOLK SHIPBUILDING & 

 DRY DOCK CORPORATION 

 MEMORANDUM OPINION* BY 

v. Record No. 0428-02-1 JUDGE LARRY G. ELDER 

 OCTOBER 1, 2002 

JAMES J. McCLEARY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Amanda R. Castel (Taylor & Walker, P.C., on 

briefs), for appellant. 

 Chandra Wilson Stepney (Robert J. MacBeth, 

Jr.; Rutter, Walsh, Mills & Rutter, on 

brief), for appellee. 

 Norfolk Shipbuilding & Dry Dock Corporation (employer) 

appeals from a decision of the Workers' Compensation Commission 

(the commission) awarding temporary total disability benefits to 

James J. McCleary (claimant). On appeal, employer contends the 

commission erroneously accepted claimant's late-filed written 

statement of September 7, 2001. It also argues that the 

commission's award of temporary total disability benefits to 

claimant for the period of time he participated in vocational 

rehabilitation sponsored by the Office of Workers' Compensation 

Programs (OWCP) of the United States Department of Labor 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
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constituted an erroneous ruling that this participation, as a 

matter of law, satisfied claimant's duty to market his residual 

work capacity under the Virginia Workers' Compensation Act (the 

VWCA).1

 We hold the time of filing of the written statement that 

employer challenges is irrelevant in this appeal because that 

statement pertained only to claimant's cross-appeal to the 

commission, not a part of the appeal before this Court. 

Further, we hold credible evidence supported a finding that 

claimant adequately marketed his residual capacity during the 

disputed periods of time through May 10, 2000. Thus, we affirm 

the commission's award of benefits for these periods.2

I. 

CLAIMANT'S LATE-FILED WRITTEN STATEMENT 

Following the deputy commissioner's award of benefits for 

the disputed periods of time prior to May 10, 2000, and denying 

benefits from May 10, 2000 forward, both parties filed 

independent requests for review. Employer requested review of 

1

 Although claimant originally sought to reframe the issue 

as whether he unreasonably refused employer's offer of 

vocational rehabilitation, the parties agreed at oral argument 

that the sole issue before us on appeal is whether claimant 

adequately marketed his residual capacity for all periods up to 

May 10, 2000, when he was partially disabled. Thus, on the 

merits of this appeal, we consider only the marketing issue. 

2

 Claimant originally sought benefits continuing after May 

10, 2000, but the deputy commissioner and commission denied this 

claim, and claimant does not contest that denial on appeal to 

this Court. 
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the deputy's decision awarding benefits for the period prior to 

May 10, 2000, and claimant requested review of the deputy's 

denial of benefits from May 10, 2000 forward. Employer's 

written statement in support of its request for review, sent by 

certified mail, was dated August 29, 2001, and claimant's reply 

to employer's written statement, also sent by certified mail, 

was dated September 10, 2001. 

Employer does not contest the timeliness of claimant's 

filing of his September 10, 2001 reply to employer's written 

statement. Rather, he contests the timeliness of claimant's 

document dated September 7, 2001. The challenged document 

purports to be "claimant's Written Statement in regards to 

Employer's request for review of . . . Deputy Commissioner 

Wilder's April 30, 2001 Opinion . . . ." (Emphasis added). 

However, a review of the text of that document makes clear that 

it contains argument only on the subject of claimant's 

independent request for review of the deputy's decision and does 

not respond to any arguments contained in employer's written 

statement. 

 Because claimant did not appeal to this Court the 

commission's ruling denying benefits from May 10, 2000 forward, 

the issue of the timeliness of claimant's filing of his 

independent written statement dated September 7, 2001 is not 

before us on appeal. Thus, we dismiss this portion of 

employer's appeal. 
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II. 

CLAIMANT'S DUTY TO MARKET HIS RESIDUAL CAPACITY 

 "Where an employee's disability is partial, to establish 

his entitlement to benefits, he must prove that he made a 

reasonable effort to market his residual work capacity." Wall 

Street Deli, Inc. v. O'Brien, 32 Va. App. 217, 220, 527 S.E.2d 

451, 453 (2000). In determining whether the employee has met 

his burden of proof, the commission should consider the 

following: 

(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. 

Nat'l Linen Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d 

31, 34 (1989) (footnotes omitted). Other matters affecting the 

employee's ability to find suitable employment include whether 

"the employer availed itself of its opportunity to assist the 

claimant in obtaining employment" and, if so, "whether the 

[claimant] cooperated" with those efforts. Id. at 272 n.5, 380 

S.E.2d at 34 n.5; see also Code § 65.2-603(A)(3), (B) (stating 

that employer may offer vocational rehabilitation services, 

independently or at direction of commission and that employee's 

"unjustified refusal" of such services justifies suspension of 
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benefits). The commission also may consider "whether [the 

employee] is capable of being retrained." McGuinn, 8 Va. App. 

at 272 n.5, 380 S.E.2d at 34 n.5. 

 Ultimately, "[t]he commission . . . determines which of 

these or other factors are more or less significant with regard 

to a particular case," id. at 273, 380 S.E.2d at 34-35, and 

"[w]hat constitutes a reasonable marketing effort depends on the 

facts and circumstances of each case," Greif Cos. v. Sipe, 16 

Va. App. 709, 715, 434 S.E.2d 314, 318 (1993). The decision of 

the commission "on [this] question, if supported by credible 

evidence, will not be disturbed on appeal." O'Brien, 32 

Va. App. at 220-21, 527 S.E.2d at 453.

 Here, employer contends the commission found, as a matter 

of law, that claimant's participation in the OWCP vocational 

rehabilitation program constituted adequate marketing of 

claimant's residual capacity and that this finding was 

erroneous. We disagree. 

 First, the commission did not hold that any claimant's 

participation in OWCP-sponsored vocational rehabilitation 

satisfies that claimant's duty to market his residual capacity 

under the VWCA as a matter of law. It merely affirmed the 

deputy's ruling that this "claimant's involvement with the 

vocational rehabilitation program offered by the Department of 

Labor under the Federal [LHWCA] met his obligations under the 

[VWCA] until May 10, 2000." (Emphases added). 
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 Second, credible evidence in the record supported that 

finding. Claimant was released to work with restrictions in 

April 1998. That same month, OWCP informed claimant that he was 

a candidate for OWCP's vocational rehabilitation services, and 

it referred him to Vocational Counselor George Davis. During 

May and June 1998, Davis performed vocational counseling and 

testing, reviewed information regarding claimant's medical 

status, and performed a labor market survey to identify 

available positions in the local labor market which were 

suitable for claimant's abilities. Although claimant had a high 

school education, an above average I.Q., and thirty years 

combined experience as an electrician for the Navy and employer, 

he was 50 years old and had no other transferable skills. Davis 

noted that "very few positions meet [claimant's] work 

restrictions" and that "most positions [he] is physically able 

to perform, such as clerical, counseling or computer, will 

require additional skills." Despite these limitations, Davis 

helped claimant prepare a resume and cover letter, target and 

apply for suitable jobs, and evaluate various opportunities for 

retraining in related fields. 

 Davis's efforts on claimant's behalf were hindered when 

claimant underwent surgery shortly after vocational 

rehabilitation efforts began and remained disabled for a period 

of time afterward. After claimant recuperated, employer laid 

claimant off, and Davis focused his efforts on obtaining 
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employment for claimant with another employer. When claimant's 

condition improved significantly, he was able to return to work 

for employer with only limited restrictions, but his condition 

worsened, and he was unable to maintain that employment. 

 Thereafter, Davis helped claimant investigate the 

possibility of utilizing his electrical skills for retraining in 

the heating and air conditioning field. Claimant had planned to 

enroll in Tidewater Community College to achieve this goal, but 

his treating physician concluded work in that field would be too 

strenuous for him. When Davis remained unable to locate 

employment for claimant for several more months, they arranged 

for claimant to enter a computer training program in "Microsoft 

Engineering" which was designed to lead to sedentary employment. 

Claimant met the minimal requirements for that training program 

until the Spring of 2000, when he failed to take a test 

necessary to allow him to progress to the next phase of the 

program. Shortly thereafter, on May 10, 2000, OWCP terminated 

his participation in its vocational rehabilitation program based 

on his non-cooperation. 

 Davis prepared detailed reports documenting his job search 

efforts on claimant's behalf, and he ceased his 

placement/retraining efforts on only three occasions--when 

claimant had surgery and was temporarily and totally disabled, 

when claimant returned to work for employer at his pre-injury 

wage, and when claimant entered the training program in 
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Microsoft Engineering which was expected to lead to claimant's 

finding appropriate employment. 

 Although no evidence established that claimant sought 

employment on his own, Davis, a trained vocational counselor 

approved by OWCP, sought employment on claimant's behalf. The 

commission was free to conclude that Davis's efforts to obtain 

retraining and locate employment for claimant could be 

attributed to claimant for purposes of evaluating claimant's 

marketing efforts and that, if Davis could not locate 

appropriate employment for claimant before claimant completed 

the Microsoft training program, claimant was unlikely to obtain 

such employment on his own. 

 Further, the record supported findings (1) that Davis's 

efforts were appropriate in light of claimant's disability, 

training and experience, and the local job market, cf. Va. Int'l 

Terminals, Inc. v. Moore, 22 Va. App. 396, 401-02, 470 S.E.2d 

574, 577 (1996) (holding credible evidence supported 

commission's finding that job search efforts were reasonable 

where "claimant's list of employers . . . [was] not an extensive 

record for marketing efforts" but commission observed that 

claimant "[could] read and write at only a second or third grade 

level"), aff'd on other grounds, 254 Va. 46, 486 S.E.2d 528 

(1997), and (2) that claimant participated in Davis's efforts in 

good faith during all disputed periods through May 10, 2000, 

when he was terminated from the OWCP program. Thus, credible 
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evidence supported a finding that claimant's good-faith 

participation in Davis's appropriate placement efforts proved 

adequate marketing of claimant's residual capacity. 

 Finally, the commission expressly found that claimant's 

refusal to cooperate with employer's vocational rehabilitation 

services prior to May 10, 2000--a component of the marketing 

issue--was not unjustified. McGuinn, 8 Va. App. at 272 n.5, 380 

S.E.2d at 34 n.5 (noting that as part of determining whether 

employee marketed his residual capacity, commission should 

consider whether employee cooperated with employer's efforts to 

assist employee in obtaining employment). When employer's 

vocational counselor first contacted claimant in June 1998, 

claimant had already begun vocational testing and counseling 

with George Davis, an OWCP counselor. As outlined above, the 

evidence also supported a finding that Davis engaged in ongoing 

efforts to obtain retraining and locate employment suitable to 

claimant's skills and abilities and that claimant cooperated 

with Davis's efforts until shortly before claimant was 

terminated from the OWCP program in May 2000. Thus, the 

evidence supported the commission's finding that claimant's 

refusal to cooperate with employer's vocational counselor was 

not unjustified. Cf. Metro Mach. Corp. v. Sowers, 33 Va. App. 

197, 208, 532 S.E.2d 341, 346-47 (2000) (holding credible 

evidence supported commission's conclusion that employee's 

refusal to cooperate with employer's vocational rehabilitation 
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was justified where employee "was actively participating with 

the Virginia Employment Commission's vocational rehabilitation 

and seeking appropriate employment"). 

 We do not view the commission's holding as a determination 

that every claimant who participates in vocational 

rehabilitation through OWCP or any similar program satisfies his 

duty to market under the VWCA as a matter of law. As discussed 

above, "[w]hat constitutes a reasonable marketing effort depends 

on the facts and circumstances of each case." Sipe, 16 Va. App. 

at 715, 434 S.E.2d at 318. Nor do we view the commission's 

holding as a determination that every claimant who participates 

in vocational rehabilitation through OWCP or any similar program 

but declines vocational rehabilitation offered by his or her 

employer under the VWCA is justified, as a matter of law, in 

doing so. Rather, it is within the discretion of the commission 

to determine in each particular case whether "the circumstances 

justified the refusal." Code § 65.2-603(B); see McGuinn, 8 Va. 

App. at 272 n.5, 380 S.E.2d at 34 n.5. 

 For these reasons, we hold credible evidence supports the 

commission's finding that claimant "met his obligations under 

the [VWCA] until May 10, 2000." 

III. 

 We dismiss employer's appeal insofar as it claims the 

commission erroneously accepted claimant's submission of 
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September 7, 2001, and we affirm the award of benefits for the 

disputed dates up to May 10, 2000. 

 Dismissed in part,

and award affirmed.