Opinion
Record No. 1612-92-2
June 29, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
Martha White Medley (James A. L. Daniel; Daniel, Vaughan, Medley Smitherman, P.C., on brief), for appellant.
John J. Trexler (Beddow, Marley, Burgess Murphey, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
On July 20, 1989, Brenda R. Skipworth (Skipworth) suffered a back injury by industrial accident while employed as a furniture wiper with Daystrom Furniture and Ladd Furniture (employer). The claim was accepted as compensable. On August 23, 1991, employer filed a change in condition application seeking to terminate compensation. The application was based upon a letter by Dr. Botton, dated August 12, 1991, approving a return to light duty work with employer, which Skipworth refused. The Workers' Compensation Commission (commission) denied the change in condition application, finding that there had been no valid release to return to light work. Employer appeals from the commission's decision.
"'If an injured employee refuses employment procured for him suitable to his capacity, he shall not be entitled to any compensation at any time during the continuance of such refusal, unless . . . such refusal was justified.'" Jules Hairstylists, Inc. v. Galanes, 1 Va. App. 64, 66, 334 S.E.2d 592, 593 (1985) (quoting former Code § 65.1-63). "To support a finding of refusal of selective employment 'the record must disclose (1) abona 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 v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 489 (1989) (quoting Ellerson v. W.O. Grubb Steel Erection Co., 1 Va. App. 97, 98, 335 S.E.2d 379, 380 (1985)).
To prove that the offer of employment was within Skipworth's residual capacity, employer had to show a change in condition.See National Linen Serv. v. McGuinn, 5 Va. App. 265, 270, 362 S.E.2d 187, 190 (1987) (en banc). A change in condition "'means a change in physical condition of the employee as well as any change in the condition under which compensation was awarded or terminated.'" Crystal Oil Co. v. Dotson, 12 Va. App. 1014, 1018, 408 S.E.2d 252, 254 (1991). Although a change in the attending physician's opinion concerning an employee's ability to resume work can establish a change in condition, Mace v. Merchants Delivery, 221 Va. 401, 405, 270 S.E.2d 717, 719-20 (1980), there was no change in Dr. Botton's opinion or in Skipworth's physical condition.
Dr. Botton's August 12, 1991 letter approving a return to light duty work did not indicate that Skipworth's physical condition had changed. As the commission found, the medical reports from August 1990 to August 1991 show no improvement in Skipworth's physical condition. Indeed, Dr. Botton's letter, releasing Skipworth to light duty work, states that "[Skipworth] has continued to complain with back pain extending down her right hip and right leg." Thus, notwithstanding the release, Skipworth's back condition remained essentially unchanged. Dr. Botton simply felt that "she probably could do" the job. However, Dr. Botton subsequently changed his opinion, concluding that she was "obviously unable to return to any kind of work at this time." This evidence supports the commission's conclusion that there was no change in Skipworth's physical condition and that Dr. Botton's release, which was couched in conditional terms, was withdrawn. Because this finding is supported by credible evidence in the record, it is conclusive and binding on appeal.See Dan River, Inc. v. Turner, 3 Va. App. 592, 593, 352 S.E.2d 18, 19 (1987).
Therefore, the commission's decision is affirmed.
Affirmed.