# Great Atlantic & Pacific Tea Co. v. Bateman

> Court of Appeals of Virginia · July 21, 1987 · 4 Va. App. 459

URL: https://www.frixlaw.com/law-library/cases/9586759

## Case

- **Full name:** GREAT ATLANTIC & PACIFIC TEA CO., Et Al. v. JEFFREY L. BATEMAN
- **Court:** Court of Appeals of Virginia
- **Decided:** July 21, 1987
- **Citations:** 4 Va. App. 459; 4 Va. Law Rep. 168; 359 S.E.2d 98; 1987 Va. App. LEXIS 199
- **Precedential status:** Published
- **Opinion:** Dissent by Barrow
- **Judges:** Cole, Barrow
- **Cited by:** 181 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9586759

## How later opinions describe it (automated extraction)

- holding employee had duty to market residual capacity by seeking new employment where he had received permanent partial impairment rating - 11 - to injured leg and physician expressly advised him to seek a new, preferably sedentary, position
- finding insufficient marketing of remaining work capacity where, over a period of six months, the claimant contacted thirteen prospective employers, submitted just five job applications, and failed to register with the unemployment office
- stating that “[w]hat is reasonable in one area, or in one industry, or even in one season might not be reasonable in another”

## Opinion text

Barrow, J.,
dissenting.
Since the evidence, in my opinion, supports the commission’s finding of disability, I would affirm the award. The uncontradicted medical evidence showed that Bateman was significantly disabled, and his unsuccessful efforts to find employment illustrated that his remaining capacity to work was of little or no economic value. Weighing the evidence underlying these factual conclusions was the Industrial Commission’s function.
Bateman’s injury caused a long period of recuperative disability and permanent disability. He was compensated for various periods of temporary total and temporary partial disability between his accident on November 3, 1980 and December 29, 1985. He then received an award for a ten percent permanent partial disability of his right leg. During this time several surgical procedures were performed on his right knee.
He is still unable to return to his regular work. The treating orthopedist advised him “to avoid work involving stooping, crawling, kneeling, and climbing” and to “also avoid prolonged walking or standing on concrete floors . . . .”
*469 Bateman has no education or experience for the sedentary employment to which he is now limited. He graduated from high school but dropped out of a course in automotive mechanics at Thomas Nelson Community College after approximately one quarter of studying. He has worked only as a retail clerk, working for this employer and several others.
Bateman’s limited education, experience and physical capacity place him within the category of workers to whom the so called “odd-lot doctrine” applies. These are workers who, “while not all together incapacitated for work, are so handicapped that they will not be employed regularly in any well-known branch of the labor market.” 2 A. Larson, Workmens Compensation Law § 57.51(a) (1987). Judge Cardozo once described such a worker as follows:
[A]n unskilled or common laborer . . . [who] coupled his request for employment with notice that the labor must be light. The applicant imposing such conditions is quickly put aside for more versatile competitors. Business has little patience with the suitor for ease and favor. He is the “odd lot” man, the “nondescript in the labor market.” Work, if he gets it, is likely to be casual and intermittent.
Jordan v. Decorative Co., 230 N.Y. 522, 525 , 130 N.E. 634, 635-36 (1921) (citations omitted). Although his remaining capacity to work was limited, Bateman attempted to market it. The commission was persuaded that his efforts were credible and identified his “bona fide attempts” to secure employment with at least twelve employers during the six months preceding the hearing before the deputy commissioner. The commission also observed that Bateman tried to market his remaining work capacity as far back as 1984 and said “[i]t can hardly be said upon the record before us that the claimant is malingering.”
In the face of this effort by Bateman, the failure of the employer or the insurance carrier to assist him in marketing this limited capacity to work is notable. The employer did not offer employment to Bateman, suggesting its recognition of his severe work limitations. While complaining that Bateman did not seek the assistance of the Virginia Employment Commission, the employer offered no evidence of its attempt to assist him in registering with that agency. Finally, even though the employer retained an employment specialist to examine employment opportunities for *470 Bateman and offer evidence about them, neither the specialist’s assistance nor his findings were offered to Bateman to assist him in his job search.
Since Bateman’s efforts to find employment and medical evidence of the extent of his disability were carefully weighed by the commission, its finding of disability should not be disturbed without identifying the commission’s misapplication, if any, of the law. The commission had to decide whether Bateman’s remaining work capacity was marketable. This Court should not superimpose its judgment for the judgment of the commission without identifying what factors, if any, the commission failed to consider, or considered when it should not have. For these reasons, I would affirm the commission.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9586759. Public record. Not legal advice.