COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Clements and Senior Judge Overton 

FAIRFAX COUNTY SCHOOL BOARD 

 MEMORANDUM OPINION*

v. Record No. 0687-03-3 PER CURIAM 

 JULY 22, 2003 

CYNTHIA H. NOLDEN-THOMPSON 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Michael N. Salveson; Hunton & Williams LLP, 

on briefs), for appellant. 

 (Linda D. Slough; Chandler, Franklin & 

O'Bryan, on brief), for appellee. 

 Fairfax County School Board (employer) contends the 

Workers' Compensation Commission erred in finding that (1) 

Cynthia H. Nolden-Thompson (claimant) proved that she made a 

reasonable effort to market her residual work capacity after she 

moved from Virginia to Hartsel, Colorado; and (2) her 

self-imposed one-hour driving restriction was reasonable. Upon 

reviewing the record and the parties' briefs, we conclude that 

this appeal is without merit. Accordingly, we summarily affirm 

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

 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. In determining whether a 

 

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

designated for publication. 
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partially disabled employee has adequately 

marketed his residual work capacity, the 

commission should consider the following 

criteria: 

 (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 effort; 

 (4) the employee's intent in 

conducting his job search; 

 (5) the availability in the 

area of jobs suitable for the 

employee, considering his 

disability; and 

 (6) any other matter 

affecting the employee's ability 

to find suitable employment. 

 The determination of whether a 

partially disabled employee has adequately 

marketed his residual work capacity lies 

within the fact finding judgment of the 

commission, and its decision on that 

question, if supported by credible evidence, 

will not be disturbed on appeal. However, 

that decision, to be affirmed, must be based 

upon credible evidence. 

Wall Street Deli, Inc. v. O'Brien, 32 Va. App. 217, 220-21, 527 

S.E.2d 451, 453 (2000) (citations omitted). 

 In affirming the deputy commissioner's decision that 

claimant proved "based upon all the surrounding circumstances, 

[that her] marketing efforts were reasonable," the commission 

found as follows: 

 The claimant submitted evidence of her 

attempts to find light-duty employment 
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within one hour of her residence. She 

contacted various businesses and re-checked 

with employers for potential openings. The 

claimant read newspaper ads, completed 

applications, and distributed her resume. 

She participated in childcare classes and 

sought funds to open a daycare center. As 

noted by the Deputy Commissioner, the 

claimant sustained an injury to her right 

upper extremity that resulted in a 25 

percent permanent impairment and ongoing 

light-duty restrictions. 

 It is undisputed that the claimant 

currently lives in a more rural area than 

she did pre-injury. While this factor 

should not be the only grounds to support an 

otherwise inadequate marketing effort, her 

employment search shows that she tried to 

find a job within a reasonable geographic 

area around her home. The claimant took 

courses and applied for grants to create an 

employment opportunity. Her job search 

included potential employers within an 

hour's distance of her home. This is not 

unreasonable, especially considering the 

claimant's previous commutes while working 

in Virginia. 

 The commission, as fact finder, weighed the evidence in 

light of the factors set forth in Wall Street Deli, and 

concluded that claimant made reasonable efforts to market her 

residual work capacity. Claimant's testimony, coupled with her 

documentary evidence and the medical records, provides credible 

evidence to support the commission's factual findings. Because 

credible evidence supports the commission's decision, we will 

not disturb it on appeal. 

 Employer also argues that the commission erred in 

concluding that claimant's job search within one-hour's drive of 
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her home in Hartsel, Colorado constituted a reasonable 

geographic area. We disagree. 

 Credible evidence, which established claimant's relocation 

to a rural area in Colorado, the nature of her injury and her 

physical restrictions, and the twenty-five percent permanent 

partial impairment of her right upper extremity, supports the 

commission's inference that it was reasonable for her to limit 

her job search to an area within one-hour's drive of her home. 

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

Affirmed.