813 S.E.2d 908
Va. Ct. App.2018Background
- Claimant (assistant freight manager) injured on March 31, 2015 when falling freight struck her; she developed neck, bilateral shoulder and arm pain and underwent right shoulder surgery July 21, 2015.
- Treating physicians imposed significant permanent work restrictions (no overhead lifting, no repetitive activity, lifting limited to 5–10 pounds; sedentary work only); employer could not accommodate those restrictions.
- Claimant began a job search November 13, 2015, primarily applying for positions at Sears/Kmart (Nov 2015–June 2016) and SuperValu/Farm Fresh (June–Oct 2016), generally applying to five jobs/week but largely with those two employers; few interviews resulted.
- Deputy commissioner awarded temporary total disability (TTD) from July 21–Sept 21, 2015 (stipulated) and from Nov 13, 2015 onward; full Commission affirmed. One commissioner dissented on sufficiency of job-marketing.
- Employer challenged (1) the review-panel composition because Chief Deputy Commissioner Szablewicz—appointed to sit by the Chairman—allegedly shared an "employee representative" background with another commissioner, violating Code §§ 65.2-200(D) and 65.2-705(D); and (2) the adequacy of claimant’s marketing of residual work capacity.
- The Court of Appeals affirmed: held the statutes do not require deputy commissioners appointed under § 65.2-705(D) to match the classification of the commissioner they replace, and credible evidence supported the Commission’s finding that claimant reasonably marketed her residual work capacity.
Issues
| Issue | Plaintiff's Argument (Tefft) | Defendant's Argument (Dollar Tree) | Held |
|---|---|---|---|
| Whether appointment of a deputy commissioner with a prior "employee representative" background violated statutory limits on Commission composition | Commission properly appointed a deputy under §65.2-705(D); deputy’s prior affiliation irrelevant | Appointment created two "employee representatives" on panel, violating §65.2-200(D) which limits members’ prior affiliations | Statutes unambiguous: §65.2-705(D) allows appointment of a deputy (distinct from recalled retired member) without requiring matching affiliation; panel constitution was proper |
| Whether claimant reasonably marketed her residual work capacity to justify TTD from Nov 13, 2015 onward | Claimant made reasonable, good-faith job search given significant restrictions, education, experience, and applied to distinct positions across multiple stores | Job search was inadequate because >90% of applications were to two employers (allowing minimal effort to meet a five-applications/week standard) | Commission’s factual finding of reasonable marketing is supported by credible evidence (restrictions, limited suitable jobs, distinct positions applied for); claim upheld |
Key Cases Cited
- Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96 (2007) (statutory interpretation is a pure question of law; plain meaning controls)
- Ford Motor Co. v. Favinger, 275 Va. 83 (2008) (no fixed guidelines for reasonable marketing; factors to assess effort)
- Nat'l Linen Serv. v. McGuinn, 8 Va. App. 267 (1989) (list of factors for evaluating marketing of residual capacity)
- Wall Street Deli, Inc. v. O'Brien, 32 Va. App. 217 (2000) (burden on partially disabled claimant to prove reasonable marketing effort)
- Peacock v. Browning Ferris, Inc., 38 Va. App. 241 (2002) (court must follow statute’s plain language and cannot extend statutory provisions)