Opinion
Record No. 1264-92-3
December 22, 1992
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Bevin R. Alexander, Jr.; Edmunds Williams, on brief), for appellants.
(Robert E. Evans, on brief), for appellee.
Present: Judges Barrow, Moon and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27.
Virginia Baptist Hospital and its insurer contend that the commission erred in (1) finding that Sharon Gosnell was not released to return to her regular employment duties; (2) finding that Gosnell did not unjustifiably refuse selective employment; and (3) excluding certain evidence proffered by appellants during direct and cross examination of witnesses.
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 [Workers' Compensation] 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) (citation omitted).
I.
Sharon Gosnell was employed as a mental health counselor at Bridges Treatment Center, Virginia Baptist Hospital at the time of her injury on August 8, 1990. This facility houses emotionally disturbed children between the ages of six and twelve.
As a part of her job, Gosnell was regularly required to handle children who became violent or out of control. In fact, at times, she was required to physically restrain these children. The children ranged in size from 50 to 170 pounds and would resist the physical restraint by hitting with their fists or heads, spitting, biting, or kicking in an effort to get away.
On August 8, 1990, Gosnell suffered a jaw injury when she was struck in the face by a child who was under her supervision. This injury subsequently required medical treatment by Culver W. Miller, D.M.D., who referred Gosnell to Dr. Norman K. Coleman, oral surgeon.
The blow on August 8, 1990 caused Gosnell to sustain a lacerated tongue and swelling in her temporomandibular joints (TMJ). Dr. Coleman performed plication surgery on Gosnell on July 26, 1991, in an effort to reduce pain and to stabilize the TMJ. According to Dr. Miller, Gosnell does not have and will never have normal TMJ even after stabilizing surgery. He opined that this injury has permanently altered Gosnell's TMJ.
With regard to Gosnell's disability, Dr. Coleman reported on September 6, 1991 that he recommended that she be transferred to a different department to avoid physical contact duties and he released her to return to work. Dr. Miller agreed with thisconditional release as is reflected in his reports and deposition of January 14, 1992. The record reveals that both doctors made it clear that Gosnell was being returned to work under the condition that she avoid physical contact duties. They clearly opined that she could not work in an environment where there was a substantial risk of trauma to the neck and head.
Upon this record, we hold that the commission's finding that Gosnell had not been released to return to her regular employment is supported by credible evidence. "The threshold test of compensability is whether the employee is `able fully to perform the duties of [her] employment.'" Celanese Fibers Co. v. Johnson, 229 Va. 117, 120, 326 S.E.2d 687, 690 (1985) (citation omitted).
The record reveals that Gosnell's work clearly posed a substantial risk of her being hit about the face and neck. According to the credible medical opinions of Drs. Coleman and Miller, Gosnell's injury essentially precluded her from performing the job duties of handling and restraining violent and out of control children. Dr. Coleman specifically stated that Gosnell was not released to return to work under the same conditions as at the time of her injury. He stated that "[i]f [Gosnell] could not be taken out of physical contact with the resident children at her job, then [she] will not be able to return to work under those circumstances."
II.
"To support a finding of refusal of selective employment `the record must disclose (1) a bona fide job offer suitable to the employee's capacity; (2) [a job offer that was] procured for the employee by the employer; and (3) an unjustified refusal by the employee to accept the job.'" James, 8 Va. App. at 515, 382 S.E.2d at 489 (citations omitted).
The record reveals that no job offer was actually made to Gosnell for the medical records clerical position. Furthermore, the position was offered to an individual who did better on a typing test than did Gosnell and who had more clerical experience than Gosnell. Additionally, there is no evidence that Gosnell's conduct in the interview with Vickie Haley was such as to prevent a job offer. Accordingly, we cannot say as a matter of law that the commission erred in finding that Gosnell did not unjustifiably refuse selective employment.
III.
In their brief, appellants direct this court to their Request for Review for a recitation of their various complaints with regard to the handling of evidence by the commission. However, upon examination, the Request for Review does not elaborate on this issue. Since appellants have failed to specifically enumerate their disagreements as to the commission's handling of certain evidence we will not address this issue on appeal. Rule 5A:18.
For the reasons stated, we affirm the commission's decision.
Affirmed.