STANFORD v. KNOX CREEK COAL CORP., 2212-93-3, Unpublished (Va.App. 7-5-1994)

PER CURIAM:

Ricky A. Stanford (claimant) appeals a decision of the Workers' Compensation Commission finding that he was not entitled to a resumption of temporary total disability benefits upon his release from prison. Specifically, claimant contends that the commission erred in basing its denial upon a finding that he failed to market his residual work capacity.

Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the commission's decision. Rule 5A:27.

On appellate review, we construe the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). Factual findings of the commission will be upheld on appeal if supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). Unless we can say as a matter of law that claimant's evidence was sufficient to sustain his burden of proof, the commission's findings are binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).

Claimant was injured in an industrial accident on October 16, 1986. Employer accepted the claim as compensable, and an award for temporary total disability benefits was entered by the commission on January 16, 1987. On June 1, 1989, pursuant to employer's application, claimant's benefits were terminated under the authority of Code Sec. 65.1-63 (now Code Sec. 65.2-510), due to claimant's incarceration. At that time, Dr. Jean M. Eelma, claimant's treating physician, had released claimant to perform light duty work. The commission found that claimant was not entitled to a continuation of benefits because he had voluntarily removed himself from the labor market by becoming incarcerated.

On December 31, 1990, claimant was paroled from prison. On March 4, 1991, claimant filed a change in condition application seeking reinstatement of benefits. He was released from parole on July 1, 1991 and placed on supervised probation. As a condition of his probation, claimant is required to perform community service forty hours per week by assisting customers at the Tazewell County Landfill. Claimant testified that he was ordered to perform this community service until he becomes disabled again, finds a job, or is released from probation. Claimant testified that he had not made any effort to find a job since he was released from prison because he believes that he is not able to work.

In denying claimant's application, the commission found that claimant's belief that he could not work was contradicted by the medical records and claimant's own actions in working a light duty job at the landfill. We find that Dr. Eelma's records and evidence of claimant's ability to work at the landfill provide credible evidence to support the commission's finding that claimant could perform light duty work.

A claimant who is capable of performing light duty work has the burden of proving that he made a reasonable effort to procure suitable work, but was unable to market his remaining work capacity. Great Atl. Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 100 (1987). Claimant admitted he had not made any effort to look for work. Accordingly, we cannot say that the commission erred in denying reinstatement of claimant's benefits on the ground that he failed to meet his burden of proving he made a reasonable effort to market his remaining work capacity.

Claimant's contention that his benefits should have been reinstated because his release from prison cured his earlier unjustified refusal of selective employment is without merit. Claimant admitted that he has not looked for work since his release from prison. Yet, he testified that if he did find a job he would be released from his community service. This credible evidence supports the commission's finding that claimant continues to voluntarily remove himself from the labor market.

Because our ruling on the marketing issue disposes of this appeal, we decline to address the statute of limitations issue raised by employer. For the reasons stated, we affirm the commission's decision.

Affirmed.