Opinion
Record No. 1672-92-4
June 22, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
Ralph L. Whitt, Jr. (Barbara J. Balough; Sands, Anderson, Marks Miller, on brief), for appellants.
Raul J. Romero, III (Burgess Trapeni, P.C., on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The employer, Moore Brothers Company, Inc., appeals the Workers' Compensation Commission's finding that Jorge Jose Kuscevic did not unjustifiably refuse light duty employment. Specifically, Moore Brothers appeals the finding that the job they offered Kuscevic was not within his physical capacity. We hold that this finding is supported by credible evidence; therefore, we affirm the commission's decision.
Findings of fact by the commission are binding on appeal if supported by credible evidence. Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d 507, 510 (1983). Kuscevic suffered a compensable injury to his back at the L4-L5 level in December, 1990. On August 23, 1991, Dr. John C. Bucur, Kuscevic's treating physician, released Kuscevic to light duty work with the restriction that he should not lift more than thirty-five to forty pounds and should have occasional rest periods.
Kuscevic returned to work at Moore Brothers on September 5, 1993. He experienced back and leg pain after attempting the duties assigned to him, including shoveling gravel and lifting rocks, some weighing approximately twenty to twenty-five pounds. Kuscevic had been instructed that if he encountered any problem with a task assigned to him, "he should not hesitate to bring it to his supervisor's attention." Kuscevic went to the hospital emergency room later that morning, complaining of pain in his back and leg. He was discharged with instructions to get as much bed rest as possible for two to three days.
Kuscevic reported that he continued to experience back and leg pain. On September 12, 1991, Dr. Bucur ordered an MRI diagnostic test. The test result revealed that some changes had occurred at the L4-L5 level, specifically that "either a portion of the end plate or an extruded fragment of disc is causing irritation in the area." Following another examination on September 24, 1991, Dr. Bucur concluded that Kuscevic should refrain from "any bending, stooping, or standing."
Code § 65.2-510 provides that a claimant who "refuses employment procured for him [by the employer that is] suitable to his capacity" loses all entitlement to benefits, so long as the refusal continues, except for medical and other services provided in Code § 65.2-603. Code § 65.2-510; see also Ellerson v. W.O. Grubb Steel Erection Co., 1 Va. App. 97, 98, 335 S.E.2d 379, 380 (1985). Although Moore Brothers advised Kuscevic that he would not be required to perform any work that he felt uncomfortable doing, the only work that Moore Brothers had offered him and had requested that he perform required either "bending, stooping, or standing." Accordingly, the light duty work offered Kuscevic was not within his physical capabilities. Therefore, credible evidence supported the commission's finding that Kuscevic did not unjustifiably refuse the "light duty" work that Moore Brothers offered him.
Affirmed.