COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

THANH TU TRAN 

 MEMORANDUM OPINION*

v. Record No. 1037-97-4 PER CURIAM 

 SEPTEMBER 9, 1997 

BROWN'S SERVICES, INC. and 

 OHIO CASUALTY INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Thomas W. Ullrich, on briefs), for 

appellant. 

 (Dawn E. Boyce; Trichilo, Bancroft, McGavin, 

Horvath & Judkins, P.C., on brief), for 

appellees. 

 Thanh Tu Tran (claimant) appeals a decision of the Workers' 

Compensation Commission (commission) denying him an award of 

temporary total disability benefits after November 2, 1994. 

Claimant contends that the commission erred in finding that he 

(1) was released to return to light-duty work as of November 2, 

1994, and (2) failed to prove that he made a good faith effort to 

market his residual work capacity after November 2, 1994. 

Finding no error, we affirm the commission's decision. 

 I. 

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

to the prevailing party below. See R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 

Unless we can say as a matter of law that claimant's evidence 

 

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

designated for publication. 
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sustained his burden of proof, the commission's findings are 

binding and conclusive upon us. See Tomko v. Michael's 

Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). 

 In ruling that claimant was released to light-duty work and 

had an obligation to seek work within his restrictions, the 

commission relied upon the November 2, 1994 "Medical Report for 

General Relief and Aid to Families with Dependent Children" form 

completed by Dr. Charles H. Emich, an orthopedic surgeon, who 

began treating claimant on August 31, 1994. On the form, Dr. 

Emich released claimant to light-duty work, with restrictions 

against lifting over ten pounds and standing or walking for more 

than one hour per day. In a contemporaneous medical report, Dr. 

Emich opined that claimant should be considered for retraining 

for a sedentary or light-duty job. Other evidence refuting total 

disability included Dr. Emich's opinion of March 8, 1995, 

reiterating his belief that claimant should be considered for 

retraining in a sedentary occupation. Also in March 1995, 

Dr. John A. Bruno examined claimant at employer's request and 

agreed that claimant was capable of performing light-duty work 

within certain restrictions. Finally, the evidence shows that 

claimant in fact worked in a part-time sedentary job for several 

months in 1995 and again in 1996 and that he was able to perform 

that work as long as he could change position periodically during 

his shift. 

 The medical records and opinions of Drs. Emich and Bruno, 
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combined with the evidence of claimant's actual employment, 

support the commission's decision. Accordingly, we cannot say as 

a matter of law that claimant's evidence sustained his burden of 

proof. 

 II. 

 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, 359 S.E.2d 

98, 101 (1987). "What constitutes a reasonable marketing effort 

depends upon the facts and circumstances of each case." The 

Greif Cos. v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318 

(1993). 

 Although claimant presented evidence of brief periods of 

part-time work, he provided no evidence to show that he made a 

good faith effort to find suitable employment within his 

restrictions. Thus, the commission did not err in concluding 

that he had not adequately marketed his residual work capacity. 

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

 Affirmed.