COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

HERMAN'S SPORTING GOODS, INC. 

AND 

ZURICH INSURANCE COMPANY MEMORANDUM OPINION*

 PER CURIAM 

v. Record No. 2206-95-1 APRIL 9, 1996 

 

SUSAN THURMOND 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Joseph C. Veith, III; Montedonico, Hamilton 

& Altman, on briefs), for appellants. 

 (Leon R. Sarfan; Sarfan & Nachman, on brief), 

for appellee. 

 Herman's Sporting Goods, Inc. and its insurer (jointly 

referred to herein as employer) contend that the Workers' 

Compensation Commission (commission) erred in finding that Susan 

Thurmond's (claimant) two jobs were substantially similar for the 

purposes of calculating her average weekly wage. Pursuant to 

Rule 5A:21(b), claimant presents the additional question of 

whether the commission erred in denying her compensation benefits 

after July 17, 1994 because she failed to reasonably market her 

residual work capacity. Upon reviewing the record and the briefs 

of the parties, we conclude that employer's appeal and claimant's 

cross-error are without merit. Accordingly, we summarily affirm 

the commission's decision. Rule 5A:27. 

 

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

designated for publication. 
 2 

 I. Average Weekly Wage

 "Virginia follows the majority rule that when an employee is 

injured on one job while in concurrent employment, the average 

weekly wage compensated is based on the combined earnings of both 

jobs if, but only if, the employments are related or similar." 

County of Frederick Fire and Rescue v. Dodson, 20 Va. App. 440, 

443, 457 S.E.2d 783, 784 (1995). 

Where, in cases like this one, all of a 

claimant's duties and skills in one job are 

utilized in the other job, which has a wider 

scope of employment, the general class of 

employment approach, focusing on the primary 

mission of an employee in both jobs, provides 

a more rational analysis for determining 

whether two employments are so related as to 

conclude they are substantially similar. 

Id. at 445, 457 S.E.2d at 785. 

 Claimant's testimony established that her job as an 

assistant store manager for employer and her job as a salesperson 

for Michael's Crafts and Floral Warehouse (Michael's) involved 

similar duties of waiting on and selling to customers, customer 

service, and stocking merchandise. Claimant's job for employer 

required her to be on her feet seven hours out of an eight-hour 

day. Claimant stated that her job duties for employer were 

similar to her duties for Michael's. While claimant did perform 

supervisory duties for employer, which she did not perform for 

Michael's, her testimony supports the conclusion that the primary 

mission of both jobs was retail sales and merchandising. Thus, 

not only were all of claimant's skills as a salesperson for 
 3 

Michael's utilized in her job as an assistant manager for 

employer, but both employments were of the same general class, 

i.e., retail sales. Claimant's testimony provides credible 

evidence to support the commission's decision that her job for 

employer was substantially similar to her job at Michael's. 

Accordingly, the commission did not err in combining the wages 

she earned in both jobs to determine her average weekly wage. 

 II. Marketing

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

to the party prevailing below. The Greif Companies v. Sipe, 16 

Va. App. 709, 716, 434 S.E.2d 314, 318 (1993). In order to 

establish entitlement to benefits, a partially disabled employee 

must prove that he has made a reasonable effort to procure 

suitable work but has been unable to do so. Great Atl. & Pac. 

Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 101 

(1987). "What constitutes a reasonable marketing effort depends 

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

App. at 715, 434 S.E.2d at 318. Unless we can say as a matter of 

law that claimant's evidence sustained her burden of proof, the 

commission's findings are binding and conclusive upon us. Tomko 

v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 

835 (1970). 

 The undisputed medical evidence showed that, at all times 

after March 21, 1994, claimant was released to perform light-duty 

work. Claimant worked in a light-duty position for employer 
 4 

until July 17, 1994, when the store closed for economic reasons. 

 The commission denied compensation benefits to claimant after 

July 17, 1994 on the ground that she did not prove that she made 

a reasonable effort to market her residual work capacity after 

that date. 

 Although claimant testified that she registered with the 

Virginia Employment Commission, met with one employer per week, 

and sent out resumes to potential employers, she did not provide 

evidence of specific jobs applied for or potential employers 

contacted or the dates of those contacts or applications. In 

addition, she ultimately accepted a part-time job over a 

full-time position, for reasons unrelated to her compensable 

injury. The full-time job would have paid a higher average 

weekly wage. Based upon claimant's failure to document her job 

search, the commission, in its role as fact finder, was entitled 

to give little weight to claimant's testimony concerning her 

marketing efforts. Accordingly, based upon this record, we 

cannot find as a matter of law that claimant met her burden of 

proving entitlement to compensation benefits after July 17, 

1994.1

 For the stated reasons, we affirm the commission's decision. 

Affirmed.

 

 1Claimant did not appeal the commission's ruling that she 

did not make a reasonable effort to market her residual capacity 

after she resigned from Michael's in March 1994. Accordingly, we 

need not address this issue on appeal.