COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Senior Judge Hodges 

Argued at Norfolk, Virginia 

NORFOLK SHIPBUILDING AND DRYDOCK CORPORATION 

v. Record No. 3115-96-1 

BARBARA DIANE GORSKI MEMORANDUM OPINION* BY 

 JUDGE SAM W. COLEMAN III 

BARBARA DIANE GORSKI AUGUST 12, 1997 

v. Record No. 3131-96-1 

NORFOLK SHIPBUILDING AND DRYDOCK CORPORATION 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Bradford C. Jacob (Taylor & Walker, P.C., on 

briefs), for Norfolk Shipbuilding and Drydock 

Corporation. 

 Gregory E. Camden (Rutter & Montagna, L.L.P., 

on briefs), for Barbara Diane Gorski. 

 In this appeal from the Workers' Compensation Commission, 

the parties raise two issues. First, the claimant contends that 

the commission erred by finding that she was not entitled to 

temporary partial disability benefits from September 20, 1995 to 

December 15, 1995, a period in which she had returned to work in 

a light duty capacity but was not offered overtime work as she 

had been offered in her pre-injury job. Second, the employer 

contends that the commission erred in finding that the claimant 

made a reasonable effort to market her residual work capacity. 

 

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

designated for publication. 
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For the following reasons, we reverse and remand the decision on 

temporary partial disability benefits and we affirm the 

commission's decision on marketing. 

TEMPORARY PARTIAL DISABILITY BENEFITS

 Two recent decisions control the issue of whether the 

partially disabled claimant is entitled to benefits because her 

light duty job has not included overtime wages as did her 

pre-injury work. In Carr v. Virginia Elec. & Power Co., ___ Va. 

App. ___, ___ S.E.2d ___ (1997), and Consolidated Stores Corp. v. 

Graham, 25 Va. App. 133, 486 S.E.2d 576 (1997), we held that when 

a claimant who has not been released to his or her pre-injury 

duties is offered and accepts light duty work from the employer 

which does not include overtime that was previously part of the 

pre-injury job, "the availability of alternative [overtime] work 

[does] not affect the claimant's right to compensation due to an 

impaired capacity to perform [her] pre-injury duties." 

Consolidated Stores, 25 Va. App. at 137, 486 S.E.2d at 578. 

The underlying theory is that the partial incapacity has caused 

the employee to earn a lesser post-injury wage than his or her 

pre-injury wage. Thus, if a claimant who has not recovered his 

or her "pre-injury capacity" suffers a wage loss in the light 

duty position by virtue of the fact that overtime work, which was 

previously available, enabled the employee to earn a particular 

wage and the employee is not able to earn that same wage because 

 overtime is unavailable in the light duty position, he or she is 
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entitled to temporary partial disability benefits to compensate 

for the wage loss incurred. See Carr, ___ Va. App. at ___, ___ 

S.E.2d at ___; Consolidated Stores, 25 Va. App. at 136-37, 486 

S.E.2d at 578. 

 The uncontradicted evidence in this case proves that the 

claimant consistently accepted overtime hours that were offered 

to her in her pre-injury employment. However, in her light duty 

employment, she was not offered overtime hours. The employee's 

average weekly wage earned prior to her injury was greater than 

the average weekly wage earned in the light duty work because of 

the lack of available overtime in the light duty work. Thus, she 

may have suffered a post-injury loss in wages. Accordingly, we 

reverse and remand for a calculation of temporary partial 

disability benefits for the period of September 20, 1995 to 

December 15, 1995, based upon an average pre-injury weekly wage 

including overtime earnings. 

MARKETING EFFORTS

 In order to qualify for continuing benefits, a claimant who 

has reached maximum medical improvement but remains partially 

disabled has a duty to make a reasonable effort to market her 

residual work capacity. National Linen Serv. v. McGuinn, 8 Va. 

App. 267, 269, 380 S.E.2d 31, 33 (1989). The burden is on the 

claimant to show that she has made a reasonable effort to obtain 

work but has been unable to do so. Washington Metro. Area 

Transit Auth. v. Harrison, 228 Va. 598, 601, 324 S.E.2d 654, 655 
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(1985). What constitutes a reasonable marketing effort is 

determined by the facts and circumstances of each case. Great 

Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 

98, 100 (1987). 

 "In determining whether a claimant has made a reasonable 

effort to market his remaining work capacity, we view the 

evidence in the light most favorable to the prevailing party 

before the commission." McGuinn, 8 Va. App. at 270, 380 S.E.2d 

at 33. The commission's factual findings will be upheld if 

supported by credible evidence in the record. Trammell Crow Co. 

v. Redmond, 12 Va. App. 610, 614, 405 S.E.2d 632, 635 (1991). 

 On this record, we hold that the evidence is sufficient to 

support the commission's finding that the claimant made a 

reasonable effort to market her remaining work capacity. 

Claimant made approximately twenty-five contacts between February 

and April of 1996 in order to find work suitable to her residual 

capacity. She registered with the Virginia Employment Commission 

and contacted her union concerning job availability outside of 

Norshipco. She reviewed want ads from the newspaper and made 

several phone contacts from those ads. She also contacted a 

local community college to get information on vocational 

training. Claimant testified that she had difficulty applying 

for many jobs due to transportation problems. The deputy 

commissioner made a credibility finding that Gorski was making an 

honest effort to search for work. Thus, we cannot say that she 
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failed to make a reasonable effort to market her residual work 

capacity. 

 Accordingly, we affirm the commission's decision on 

marketing and reverse and remand for a calculation of temporary 

partial disability benefits, taking into account the claimant's 

wage loss due to an unavailability of overtime hours. 

Affirmed in part,

reversed in part,

 and remanded.