Emeritus Corporation d/b/a Wilburn Gardens v. Elizabeth Ann Smythers

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Clements and Senior Judge Annunziata

EMERITUS CORPORATION D/B/A
WILBURN GARDENS AND COMMERCE AND
INDUSTRY INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 0929-06-2 PER CURIAM
AUGUST 15, 2006
ELIZABETH ANN SMYTHERS

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

(S. Vernon Priddy III; Sands Anderson Marks & Miller, P.C., on
briefs), for appellants.

(Wesley G. Marshall, on brief), for appellee.

Emeritus Corporation d/b/a Wilburn Gardens and its insurer (hereinafter referred to as

“employer”) appeal a decision of the Workers’ Compensation Commission finding that

(1) Elizabeth Ann Smythers (claimant) did not unjustifiably refuse an offer of light-duty work

procured by employer; and (2) she adequately marketed her residual work capacity during the

time period claimed. Employer also contends (1) it was denied due process when the

commission refused to vacate its review opinion and permit employer to submit a supplemental

written statement; and (2) the commission erred in addressing and reversing the deputy

commissioner’s finding that claimant unjustifiably refused selective employment when that issue

was not raised on review by the parties. Pursuant to Rule 5A:21(b), claimant raises the

additional questions of whether the commission erred in (1) failing to find that any unjustified

refusal of selective employment by claimant was cured; (2) failing to find that claimant’s wage

*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
loss after attempting to resume her work was the result of employer’s failure to restore her to her

position, rather than any unjustified refusal of selective employment; and (3) failing to find that

any refusal of selective employment was justified. We have reviewed the record and the

commission’s opinion and find that employer’s appeal is without merit. Accordingly, we affirm

for the reasons stated by the commission in its final opinion. See Smythers v. Wilburn

Gardens/Emeritus Corporation, VWC File No. 219-37-69 (Mar. 7, 2006).1 We dispense with

oral argument and summarily affirm because the facts and legal contentions are adequately

presented in the materials before the Court and argument would not aid the decisional process.

See Code § 17.1-403; Rule 5A:27.

Affirmed.

1
Because we summarily affirm the commission’s decision with respect to the questions
raised by employer, we need not address the additional questions raised by claimant.
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