Opinion
Record No. 1501-93-2
April 12, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Daniel E. Lynch (Williams, Butler Pierce, on brief), for appellant.
John M. Oakey, Jr. (McGuire, Woods, Battle Boothe, on brief), for appellees.
Pursuant to Code § 17-116.010, this opinion is not designated for publication.
On appeal, appellant contends that the commission erred in finding: (1) that he unjustifiably refused suitable work; (2) that he failed to cure this refusal; and (3) that he was able to return to regular duty work on September 4, 1992. For the reasons stated, we affirm.
"On appellate review, the court will construe the evidence in the light most favorable to the party prevailing below." Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986).
Appellant, John D. Wood, III, sustained a compensable injury to his ankle on December 13, 1991, while working as a drywall mechanic for Omega Interiors. He received workers' compensation benefits beginning on December 20, 1991. On March 24, 1992, appellant's initial physician, Dr. Fogelson, determined that appellant could "return to full-time work immediately." Seeking a second opinion, appellant visited Dr. William Henceroth, who, on April 2, 1992, suggested that appellant take some more time off from work to get the ankle in better shape. Dr. Henceroth indicated that appellant could return to full time regular employment in two months, or approximately June 2, 1992.
On May 7, 1992, appellant visited Dr. Kim Sellergren for a third opinion. Dr. Sellergren recommended "a vigorous work hardening program" at Stuart Circle Hospital's Return to Work Center for two to four weeks to rehabilitate the ankle for work. On June 30, 1992, Dr. Sellergren noted that appellant should "continue the work hardening program."
Robin Metcalf, a rehabilitation specialist assigned to work with appellant, found a job vacancy for a "detail man," conditioning and reconditioning new and used cars at Chesterfield Dodge, working 42 1/2 hours per week at $6.50 per hour. Mr. Alva Wallace, a supervisor at Chesterfield Dodge, indicated to Metcalf that the job required one-third standing, one-third walking and one-third sitting. On August 13, 1992, Metcalf told appellant to contact Wallace about the job. Appellant met with Metcalf and Wallace on that date, and Wallace offered and appellant accepted the job. Wallace expected appellant to report to work on the next day (August 14); however, he never showed up. On August 17, 1992, appellant contacted Metcalf and told her that he got a job on his father's farm working 21 hours per week at $6.00 per hour.
In a November 23, 1992 deposition Wallace agreed that, on average, detail men spend 80% of their time on their feet. (J.A. 35-36). Wallace indicated that he was willing to let employees work at their own pace, that he had a handicapped female working for him, and that he had never fired anybody or had anyone walk out. (J.A. 39-41).
Metcalf met with appellant and his father on August 18, 1992 regarding the Chesterfield Dodge job description, but appellant "said, well, I don't care, I'm going to work for my father anyway." During a telephone conversation, Metcalf indicated to appellant that "it would be a problem" if the pay and hours of the farm job differed from the pay and hours at Chesterfield Dodge. Metcalf testified that, initially, appellant lied, telling her that the farm job involved the same hours and rate of pay as the job at Chesterfield Dodge.
On August 20, 1992, Wallace signed the "detail man" job description, and Dr. Sellergren signed and approved it on August 25, 1992. On August 26, 1992, the employer filed an application for a hearing based on claimant's refusal to accept light duty employment.
In a September 24, 1992 report, Dr. Sellergren noted that appellant returned for a follow-up visit and had accepted a job working on his father's farm. Sellergren explained that appellant "still has some pain when he is actually on his feet a lot. . . . If he has to work on uneven ground he gets a lot of ankle pain after an hour or two." The doctor would let him continue to work, and, if pain was unrelieved over the next few months, another opinion would be sought.
In a November 16, 1992 letter, Dr. Sellergren stated:
while I probably would not have approved the stated job for Mr. Wood as of August 21, 1992, I probably would have cleared him to do that job as of September 4, 1992 and feel that from that point on he certainly should have been able to work a full 40 hour work week.
On July 14, 1993, the commission found that appellant "unjustifiably refused selective employment, and . . . he failed to cure this refusal by securing a part-time position on his own." The commission also found that, in his November 16, 1992 letter, Dr. Sellergren released appellant to return to regular full time work as of September 4, 1992.
Code § 65.2-510 (formerly Code § 65.1-63) "gives the employer the right to offer or find selective employment for the employee, although it has no duty to do so. The employee's unreasonable refusal to take the work is in itself justification to deny compensation." National Linen Serv. v. McGuinn, 8 Va. App. 267, 272 n. 5, 380 S.E.2d 31, 34 n. 5 (1989).
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." . . . Moreover, an employee's unjustified refusal to cooperate with placement efforts of the employer is tantamount to an unjustified refusal to selective employment under [the] Code.
James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 489 (1989) (citations omitted).
The record contains credible evidence supporting the commission's findings that appellant unjustifiably refused the job at Chesterfield Dodge. Appellant never attempted to perform the job, unequivocally telling Ms. Metcalf that he intended to work on his father's farm and misleading her that the farm work paid the same and involved the same number of hours as the Chesterfield Dodge job.
In addition to Dr. Sellergren's release to return to regular full time work as of September 4, 1992, the record also contains Dr. Fogelson's March 25, 1992 letter stating that appellant "can return to full-time work effective immediately."
"The fact that there is contrary evidence in the record is of no consequence if there is credible evidence to support the commission's finding." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
Accordingly, we affirm the decision of the commission.
Affirmed.