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					VIRGINIA:                                                                         09/16/2009
IN THE WORKERS’ COMPENSATION COMMISSION


RICHARD TODD LAM, Claimant
                                                                   Opinion by DIAMOND
                                                                      Commissioner
v.             VWC File No. 238-47-25

CONTRACTING UNLIMITED, INC., Employer
UNITED CONTRACTORS OF VA GROUP SELF-INS., Insurer


John B. Krall, Esquire
for the Claimant.
(Copy sent Priority Mail)

Angela F. Gibbs, Esquire
for the Defendants.
(Copy sent Priority Mail)


     REVIEW on the record by Commissioner Diamond, Commissioner Dudley, and
Commissioner Williams at Richmond, Virginia.

       This case is before the Commission at the request of the employer for review of a

decision of the Deputy Commissioner which found that the claimant adequately marketed his

residual capacity from January 11, 2009, and continuing with the exception of a period of time

during which he was totally disabled in March 2009. The hearing was held on April 1, 2009. We

AFFIRM.

            The claimant filed claims on July 16, 2008, September 11, 2008 and November 14,

2008, for an injury by accident to his right upper extremity on May 2, 2008. The employer

stipulated to the compensability of the injury by accident and to temporary total disability from

May 3 through July 6, 2008; temporary partial disability from July 7 through July 9, 2008;

temporary total disability from July 10 through September 3, 2008; temporary partial disability

from September 4 through September 5, 2008; temporary total disability from September 6
                                                                       VWC File No. 238-47-25



through September 22, 2008; temporary partial disability from September 23 through September

29, 2008; temporary total disability from September 30 through December 1, 2008; temporary

partial disability from December 2 through December 15, 2008; temporary total disability from

December 16 through December 22, 2008; temporary partial disability from December 23

through December 24, 2008; temporary total disability from March 11 through March 15, 2009;

and that no disability is owed from December 25, 2008, through January 10, 2009.

       The issue before the Deputy Commissioner was whether the claimant adequately

marketed his residual work capacity from January 11, 2009 and continuing with the exception of

the period in March when he was totally disabled between March 11 and March 15, 2009.

       The claimant testified that he registered online with the Virginia Employment

Commission (VEC) and also followed up with a phone call. He looked through the newspaper

for jobs. He went online to the VEC website to locate jobs. He checked online with companies he

knew of, including DuPont, AmeriCoors, Miller Coors. He stated that he examined the websites

to see what jobs they were hiring for, and submitted job applications when appropriate on line.

He did not apply to Coors because they were only accepting applications from college graduates.

He submitted a job search log. He explained that the only way to submit applications is online.

Some people told him to try again in a couple of months. He also visited some places to ask if

they were hiring.

       The claimant stated on cross examination that he is thirty years old and a high school

graduate. He has taken computer aided drafting classes but cannot use his hand to do fine detail

at this time. He was questioned as to why he applied for a job with Merck although he cannot use




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his right arm. He believed that there was still a possibility that he could get hired as a janitor or

clerical aide, for example, answering phones.

        Counsel for the employer questioned the claimant as to why he contacted Shenandoah

Machine Shop. The claimant stated that he is familiar with what the company does, which is to

die cast parts and he believes that he would be capable of using his left hand to type while the

machine would cut out the part. Defense counsel also questioned his reasoning in deciding to

make contact with Kellogg, Brown & Root. The claimant explained that he looked at the

company’s web site and determined that the company does many things, not just construction.

        Counsel for the employer questioned the claimant’s decision to contact Hess Orthopedic.

The claimant explained that he chose to apply at that office in particular because they have a

physical therapy department where he might be able to do something.

        He has experience as a car salesman, and therefore he contacted car dealerships to seek

employment.

        The claimant stated that “there’s got to be something I can do with my left hand,” but

since he is right handed, he does not know what that will be.

        The claimant does not have a driver’s license. He sustained a traumatic brain injury in

2003.

        The claimant introduced a job search log that reflects both online and personal contacts in

January through March of 2009.

        In addition to utilizing the VEC job list, contacts include: Mork, DuPont, CST, Norfolk

Southern, Exxon, Valley Grocery, Liberty, Shenandoah Racket Shop, Alcoa KBL, Utility Inc.,

Hess Orthopedic, 7-Eleven, Town of Elkton, Elkton Chevron, Backstage Video, Deals for Less,



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                                                                        VWC File No. 238-47-25



Miller Coors, Family Dollar, E Valley, New Image Renovations, Steven Toyota, Harrisonburg

Honda, Harrisonburg Hyundai, Harrisonburg Mitsubishi, Harrisonburg Ford, Function 4 Sports,

Keith’s Auto Sales, and Luray Chevrolet.

       The medical record reflects that the claimant injured his right elbow while working as a

concrete laborer on May 2, 2008. He underwent surgeries on August 20, 2008 and on October

15, 2008. As of December 8, 2008, he was restricted to no use of his right hand. He is right

handed. He continued to experience pain, aggravated by the cold. The physical therapist reported

on December 30, 2008, that he was “very anxious to continue working on functional use of his

right arm.” His occupational therapist wrote on January 13, 2009, that he was “participating well

in clinic and home programs as assigned by this therapist.” The records also reflect that during

this period he continued to experience pain and discomfort. Orthopedic Center records on

February 3, 2009, reflect “constant pain, dull, sharp more severe with use.”        Surgery was

performed to remove the painful hardware on March 11, 2009. He was released to return to work

on March 16, 2009, with no lifting more than 10 pounds.

       “An employee must exercise reasonable diligence in seeking employment and the

reasonableness of an employee’s effort will be determined on a case by case basis, taking into

account all of the facts and surrounding circumstances.” Ford Motor Co. v. Favinger, 275 Va. 83,

89, 654 S.E.2d 575, 579 (2008) (citations omitted). Some of the criteria, however, that should be

considered include:

       (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; (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 [the] employee's capacity to find
       suitable employment. National Linen Serv. v. McGuinn, 8 Va. App. at 272, 380


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                                                                        VWC File No. 238-47-25



        S.E.2d at 34 [(1989)] (footnotes omitted); accord Metropolitan Washington
        Airports Auth. v. Lusby, 41 Va. App. 300, 317, 585 S.E.2d 318, 326 (2003); Wall
        Street Deli [v. O’Brien], 32 Va. App. at 220, 527 S.E.2d at 453 (2000).

Id., 275 Va. at 90.

        In determining whether a reasonable effort has been made we consider factors such as the

nature and extent of the employee’s disability, his intent in conducting a job search, and the

availability of suitable jobs. National Linen Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d

31, 34 (1989) (footnotes omitted); e.g. Metropolitan Washington Airports Auth. v. Lusby, 41 Va.

App. 300, 317, 585 S.E.2d 318, 326 (2003); Wall Street Deli Inc. v. O’Brien, 32 Va. App. 217,

220, 527 S.E.2d 451, 453 (2000).

        From this record we agree with the Deputy Commissioner that the claimant made a good

faith effort to find work. The Deputy Commissioner made an implicit credibility determination

that the claimant was looking for work in good faith. Goodyear Tire & Rubber Co. v. Pierce, 5

Va. App. 374, 381, 363 S.E.2d 433, 437 (1987). In most instances, we defer to a deputy

commissioner's credibility determinations regarding witnesses he or she observed firsthand and

from whom impressions were formed. Va. Real Estate Board v. Kline, 17 Va. App. 173, 435

S.E.2d 596 (1993). The claimant is right handed and has very limited use of his right upper

extremity. He is a high school graduate who was working as a concrete laborer. After he injured

his elbow, he continued to work at his preinjury employer for as long as possible despite ongoing

pain and repeated surgeries, thus demonstrating his work ethic. He demonstrated good effort at

rehabilitation as recorded by his therapist. During the period of time in which he was searching

for a job, he was experiencing pain in his right elbow which led to a third surgery to remove the

painful hardware. Nonetheless, he reached out to numerous employers both in person and online.



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                                                                          VWC File No. 238-47-25



We take administrative notice that this period occurred during a major recession. We do not

discount online searches in contrast to personal visits, because many employers now conduct

applicant searches online. The claimant does not have a driver’s license. He is not a professional

rehabilitation counselor, and is therefore not expected to engage in a sophisticated screening of

potential employers. Nonetheless, his responses to counsel for the employer demonstrate that he

was thoughtful in his targeting of potential employers. We note that although the employer

stipulated to the compensability of the accident, it did not offer to assist the claimant in his job

search.

          We agree with the Deputy Commissioner that the claimant engaged in a good faith job

search.

          For these reasons, the May 14, 2009, Opinion is AFFIRMED.

          Interest is payable on the Award pursuant to Code § 65.2-707. The claimant’s attorney is

awarded an attorney’s fee of $350 added to the previous award of $2,300 for a total fee of

$2,650, which shall be paid directly to counsel for the claimant out of accrued compensation.

          This matter is removed from the Review docket.

                                                  APPEAL

          This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty

days of receipt of this Opinion.

cc:       Richard Todd Lam
          Contracting Unlimited, Inc.
          United Contractors of VA Group Self-Ins.




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