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COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judge Frank and Senior Judge Bumgardner Argued at Chesapeake, Virginia

COUNTY OF JAMES CITY FIRE DEPARTMENT AND VIRGINIA MUNICIPAL GROUP SELF-INSURANCE ASSOCIATION v. Record No. 0225-09-1 OPINION BY JUDGE ROBERT P. FRANK AUGUST 4, 2009

WARREN EDWARD SMITH

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION Ralph L. Whitt, Jr. (Brandon R. Jordan; Whitt & Del Bueno, P.C., on briefs), for appellants. Joseph F. Verser (Richard B. Donaldson, Jr.; Jones, Blechman, Woltz & Kelly, P.C., on brief), for appellee.

County of James City Fire Department and Virginia Municipal Group Self-Insurance Association, (collectively appellant), appeal the decision of the Workers' Compensation Commission (commission) which awarded temporary partial benefits to Warren Edward Smith (claimant). Appellant contends the commission erred in finding claimant adequately marketed his residual work capacity. 1 For the reasons stated, we reverse the commission's decision. BACKGROUND Claimant, age sixty-one at the time of the hearing before the deputy commissioner, had been employed by appellant as a firefighter/emergency medical technician captain. His employment spanned thirty-eight years. As captain, he supervised four or five firefighters and

While appellant raised four questions presented, only one issue is before us as it was before the commission, i.e., whether claimant marketed his residual work capacity. Subsumed in this issue is whether claimant earned all he is "able to earn" under Code

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Virginia Law