COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Agee and Kelsey
Argued at Salem, Virginia
WORKSAVER MATERIAL HANDLING
EQUIPMENT, CO., INC.
MEMORANDUM OPINION * BY
v. Record No. 1044-02-3 JUDGE ROBERT J. HUMPHREYS
JANUARY 7, 2003
ROBERT LITTLETON EPPS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
John C. Duncan, III (Duncan & Hopkins, P.C.,
on brief), for appellant.
Linda D. Slough (Elizabeth C. Griffin;
Chandler, Franklin & O'Bryan, on brief), for
appellee.
Worksaver Material Handling Equipment Co., Inc., (employer)
appeals from a decision of the Workers' Compensation Commission
awarding Robert Littleton Epps temporary total disability
benefits and temporary partial disability benefits, for the
period after February 1, 2001. For the reasons that follow, we
affirm the decision of the commission.
"In accordance with well established principles, we
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
consider the evidence in the light most favorable to the
prevailing party below." Hillcrest Manor Nursing Home v.
Underwood, 35 Va. App. 31, 34, 542 S.E.2d 785, 787 (2001). So
viewed, the evidence here established that on October 11, 2000,
Epps injured his left leg and ankle while driving a forklift for
employer. 1
He was taken to the emergency room where Dr. James Ramser
performed surgery on his ankle and removed him from work.
Dr. Ramser released Epps to light duty on February 1, 2001. 2
Epps then sent a certified letter to employer indicating that he
was fit for light duty, consistent with Dr. Ramser's
restrictions, and ready to return to work. After approximately
a week, Epps called David Harrison, a partner with Worksaver,
about returning to work. 3 Harrison told Epps that he could
return to work, but he would not be driving a forklift.
1
Epps testified that his duties for employer were "[a]
little bit of everything, . . . painting the carts that we put
together for . . . the luggage cart[,] . . . assembling the
tires and put[ting] them on the carts," as well as operating a
forklift.
2
Epps was restricted to "no prolonged walking, squatting or
lifting over fifteen pounds."
3
There is conflicting evidence in the record as to when
Epps sent the certified letter and spoke to Harrison. Epps
testified that he sent the letter on February 14, 2001, and
spoke with Harrison on February 21, 2001. However, Harrison
testified that he signed for the letter on March 5, 2001 and
that he remembered talking to Epps one or two weeks later.
Neither the letter nor the return-receipt were admitted into
evidence. The commission found that Harrison offered Epps
selective employment "on or about March 12, 2001."
- 2 -
However, the men never discussed the terms or details of the
light duty employment. Epps never returned to employer and,
over the course of the next five months, was temporarily
employed by four different employers.
On appeal, employer contends that the commission erred in
awarding Epps temporary total disability benefits for the period
after February 1, 2001. Specifically, employer argues the
commission erred in finding the evidence sufficient to establish
that Epps adequately marketed his residual work capacity after
that date. We disagree.
"Factual findings by the commission that are supported by
credible evidence are conclusive and binding upon this Court on
appeal." Southern Iron Works, Inc. v. Wallace, 16 Va. App. 131,
134, 428 S.E.2d 32, 34 (1993). Indeed, "[i]f there is evidence,
or reasonable inferences can be drawn from the evidence, to
support the [c]ommission's findings, they will not be disturbed
on review, even though there is evidence in the record to
support a contrary finding." Morris v. Badger Powhatan/Figgie
Int’l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986).
"In order to continue to receive benefits under the
Workers' Compensation Act, a claimant who has been injured in a
job-related accident must market his remaining capacity to work.
A claimant must make a 'reasonable effort' to find work suitable
to his or her ability to perform." Herbert Bros., Inc. v.
Jenkins, 14 Va. App. 715, 717, 419 S.E.2d 283, 284 (1992).
- 3 -
"What constitutes a reasonable marketing effort depends upon the
facts and circumstances of each case." Greif Companies
(GENESCO) v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318
(1993).
[I]n deciding whether a partially disabled
employee has made [a] reasonable effort to
find suitable employment commensurate with
his abilities, the commission should
consider such factors as: (1) the nature and
extent of employee's disability; (2) the
employee's training, age, experience, and
education; (3) the nature and extent of
employee's job search; (4) the employee's
intent in conducting his job search; (5) the
availability of jobs in the area suitable
for the employee, considering his
disability; and (6) any other matter
affecting employee's capacity to find
suitable employment.
National Linen Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d
31, 34 (1989) (footnotes omitted). "The commission . . .
determines which of these or other factors are more or less
significant with regard to the particular case." Id. at 272-73,
380 S.E.2d at 34-35; see also Lynchburg General Hospital v.
Spinazzolo, 22 Va. App. 160, 168, 468 S.E.2d 146, 150 (1996).
Thus, in examining Epps' "intent in conducting his job search,"
the commission had to determine "whether it was evident from the
employee's conduct that he was acting in good faith in seeking
suitable employment." National Linen Serv., 8 Va. App. at 272
n.3, 380 S.E.2d at 34 n.3.
Here, Epps established that he contacted employer about
light duty employment on at least two occasions and that he
- 4 -
obtained four positions with other employers, all within a five
month period of time. On these facts, we find there is credible
evidence in the record to support the commission's finding that
Epps' job search was made in good faith. Epps "necessarily
[marketed] his residual capacity during [that] time because he
located employment," at times making a "significant wage
compared to his pre-injury wage." See Jules Hairstylists, Inc.
v. Galanes, 1 Va. App. 64, 68-69, 334 S.E.2d 592, 595 (1985)
("Only if the factual findings are not supported by credible
evidence does the question of sufficiency of the evidence become
one of law and a proper subject for review on appeal.").
Employer next contends that the commission erred in finding
that Epps did not refuse selective employment. We again
disagree.
Code § 65.2-510(a) provides that "[i]f an injured employee
refuses employment procured for him suitable to his capacity, he
shall only be entitled to the benefits provided for in
§§ 65.2-503 and 65.2-603 . . . during the continuance of such
refusal, unless in the opinion of the [c]ommission such refusal
was justified." "This statute does not require that employers
make selective employment available. But the relief thereby
afforded an employer when an employee unjustifiably refuses to
accept or continue selective employment is limited to those
cases in which the employer has provided or procured such
employment." Big D Quality Homebuilders v. Hamilton, 228 Va.
- 5 -
378, 381-82, 322 S.E.2d 839, 841 (1984) (citation omitted).
In Ellerson v. W. O. Grubbs Steel Erection
Co., 1 Va. App. 97, 98, 335 S.E.2d 379, 380
(1985), we held that "in order to support a
finding [of refusal] based upon Code
[§ 65.2-510], the record must disclose (1) a
bona fide job offer suitable to the
employee's capacity; (2) procured for the
employee by the employer; and (3) an
unjustified refusal by the employee to
accept the job."
Johnson v. City of Clifton Forge, 9 Va. App. 376, 377, 388
S.E.2d 654, 655 (1990).
"In the case of a refusal of selective employment, the
employer has the burden to show that the position offered is
within the employee's residual capacity." American Furniture
Co. v. Doane, 230 Va. 39, 42, 334 S.E.2d 548, 550 (1985).
"[E]mployment 'suitable to [the employee's] capacity' means
employment within the employee's residual capacity resulting
from the industrial accident." Id. Further, "[t]o constitute a
bona fide offer, the selective employment contemplated by Code
§ 65.2-510 must be upon terms and conditions sufficiently
specific to permit informed consideration by an employee, and
comprised of duties consistent with employee's remaining work
capacity." Hillcrest Manor, 35 Va. App. at 37, 542 S.E.2d at
788 (citations omitted).
The evidence in the record does not demonstrate that
Harrison offered Epps information as to what the light duty
position would be and/or what the position might entail.
- 6 -
Accordingly, we find no error in the commission's determination
that employer failed to establish it had made Epps a bona fide
offer of employment, within the confines of his residual
capacity.
For these reasons, we affirm the decision of the
commission.
Affirmed.
- 7 -