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O.K. James Constr. Inc. v. Lee

Court of Appeals of Virginia. Argued at Norfolk, Virginia
Jun 21, 1994
Record No. 2038-93-1 (Va. Ct. App. Jun. 21, 1994)

Opinion

Record No. 2038-93-1

Decided: June 21, 1994

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Affirmed.

William Orr Smith, for appellants.

M. Tracy McMurtrie (Horne, West and McMurtrie, on brief), for appellee.

Present: Judges Baker, Benton and Bray


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


O.K. James Construction, Inc. (employer) appeals a decision of the Virginia Workers' Compensation Commission (commission) which denied its application for suspension of temporary total disability benefits to Keith Lee (claimant). Employer contends that the commission erred in holding that claimant justifiably refused an offer of selective employment. We disagree and affirm the commission's decision.

Under well established principles, we view the evidence and the reasonable inferences drawn therefrom in the light most favorable to the prevailing party below, claimant in this instance. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). The parties are fully conversant with the record, and this memorandum opinion recites only those facts necessary to a disposition of the issue on appeal.

"If an injured employee refuses employment procured for him suitable to his capacity, he shall only be entitled to the benefits provided for in Sec. 65.2-603 during the continuance of such refusal, unless in the opinion of the Commission such refusal was justified." Code Sec. 65.2-510 (emphasis added). "[P]hrases such as 'unless in the opinion of the Commission such refusal was justified' are provided so that those appointed to implement the compensation laws may make discretionary judgments that carry out the legislative intent." DePaul Medical Center v. Hamilton Brickhouse, ___ Va. App. ___ ___, ___ S.E.2d ___, ___ (1994). The exercise of such discretion will not be disturbed on appeal unless plainly wrong or without evidence to support it. See id. at ___, ___ S.E.2d at ___.

Here, claimant was offered employment in a Virginia locality which was within his physical capacity. However, the commission correctly noted that claimant had relocated to his "home" state of South Carolina following the injury and re-established "economic and social ties" there during the twenty-eight months preceding the offer of employment in issue. Further, the evidence was "far from persuasive in establishing that the job search was exhausted in South Carolina before the . . . job offer [in Virginia] was made." Under such circumstances, the commission's conclusion that claimant was justified in refusing a position which required a change of residence to Virginia, with attendant personal and economic hardships, finds ample support in the record.

Accordingly, we affirm the decision of the commission.

Affirmed.


Summaries of

O.K. James Constr. Inc. v. Lee

Court of Appeals of Virginia. Argued at Norfolk, Virginia
Jun 21, 1994
Record No. 2038-93-1 (Va. Ct. App. Jun. 21, 1994)
Case details for

O.K. James Constr. Inc. v. Lee

Case Details

Full title:O.K. JAMES CONSTRUCTION, INC., ET AL. v. KEITH LEE

Court:Court of Appeals of Virginia. Argued at Norfolk, Virginia

Date published: Jun 21, 1994

Citations

Record No. 2038-93-1 (Va. Ct. App. Jun. 21, 1994)