COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bumgardner and Lemons 

WASHINGTON METROPOLITAN AREA 

 TRANSIT AUTHORITY 

 MEMORANDUM OPINION*

v. Record No. 2108-99-4 PER CURIAM 

 FEBRUARY 8, 2000 

ALBERTUS BAKER 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (William T. Kennard; Robert C. Baker; Mell, 

Brownell & Baker, on brief), for appellant. 

 (Lawrence S. Jacobs; Bruce M. Bender; Jacobs, 

Abod & Caruso, LLC; Van Grack, Axelson & 

Williamowsky, P.C., on brief), for appellee. 

 Washington Metropolitan Area Transit Authority (employer) 

contends that the Workers’ Compensation Commission (commission) 

erred in finding that Albertus Baker (claimant) proved that he 

adequately marketed his residual work capacity after August 1, 

1998. Upon reviewing the record and the briefs of the parties, 

we conclude that this appeal is without merit. Accordingly, we 

summarily affirm the commission’s decision. See Rule 5A:27. 

 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. 

See Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication. 
- 2 - 

359 S.E.2d 98, 101 (1987). "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). The factors the commission should 

consider in deciding whether a claimant has made reasonable good 

faith efforts to market his or her remaining capacity are: 

(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). In reviewing the 

commission's findings, "we review the evidence in the light most 

favorable to . . . the party prevailing before the commission." 

Id. at 270, 380 S.E.2d at 33. Moreover, factual findings made 

by the commission will be upheld on appeal if supported by 

credible evidence. See James v. Capitol Steel Constr. Co., 8 

Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). 

 In ruling that claimant proved that he made a good faith 

effort to market his residual work capacity, the commission 

found as follows: 

[T]he claimant did prove that he reasonably 

marketed his residual work capacity after he 

started working for Home Mortgage Center, 
- 3 - 

Inc. . . . The claimant made significant 

effort to learn the mortgage business and 

has been successfully earning substantial 

commissions. His wage loss clearly resulted 

from his physical inability to perform his 

pre-injury bus-driving job. There is no 

evidence that the claimant simply accepted a 

job below his earning ability. Based on his 

work experience, age, and the extent of his 

disability, he reasonably marketed his 

residual work capacity after August 1, 1998, 

and is entitled to partial disability 

benefits. 

 Credible evidence proved that claimant suffers from a 

significant disability in his neck and lower back preventing him 

from performing his pre-injury job as a bus driver. Claimant, 

age forty-nine, whose sole employment for the past twenty-three 

to twenty-four years was driving a bus, trained himself and 

secured full-time employment in the mortgage industry making 

significant income as of August 1, 1998. 

 Considering the factors set forth in McGuinn, ample 

credible evidence in the record supports the commission's 

finding that claimant proved he reasonably and adequately 

marketed his residual capacity after August 1, 1998. As the 

commission aptly stated, "Whether a claimant is entitled to 

temporary partial disability benefits depends upon multiple 

factors, not simply a comparison between the pre-injury and 

post-injury wages." 

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

Affirmed.