COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
ACE CARPENTRY, INC. AND
PENNSYLVANIA MANUFACTURERS
ASSOCIATION INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 1169-02-2 PER CURIAM
OCTOBER 1, 2002
BENJAMIN M. MULLINS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Arthur T. Aylward; Thomas C. Bunting;
Midkiff, Muncie & Ross, P.C., on briefs), for
appellants.
(Wesley G. Marshall, on brief), for appellee.
Ace Carpentry, Inc. and its insurer (hereinafter referred
to as "employer") contend the Workers' Compensation Commission
erred in finding that (1) Benjamin M. Mullins (claimant) proved
he was entitled to a de facto award; (2) employer failed to
prove it made a bona fide offer of selective employment to
claimant; (3) claimant did not unjustifiably refuse selective
employment; and (4) claimant had no duty to market his residual
work capacity because he was under a de facto award. Upon
reviewing the record and the parties' briefs, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
the commission's decision. Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. Existence of a De Facto Award
In Ryan's Family Steak Houses, Inc. v. Gowan, 32 Va. App.
459, 528 S.E.2d 720 (2000), we reiterated our holding in
National Linen Serv. v. McGuinn, 5 Va. App. 265, 269-70, 362
S.E.2d 187, 189 (1987) (en banc) as follows:
[W]here the employer has stipulated to the
compensability of the claim, has made
payments to the employee for some
significant period of time without filing a
memorandum of agreement, and fails to
contest the compensability of the injury, it
is "reasonable to infer that the parties
ha[ve] reached an agreement as to the
payment of compensation," and a de facto
award will be recognized.
Gowan, 32 Va. App. at 463, 528 S.E.2d at 722.
In ruling that claimant proved the existence of a de facto
award, the commission found as follows:
The employer voluntarily paid benefits from
November 4, 1999 to November 7, 2000, a
period of over one year. Moreover, the
employer did not contest the initial
compensability of the accident. . . .
* * * * * * *
The Commission has found a de facto
award where the employer paid benefits for
an extended period of time and did not
contest the compensability of the claim.
The employer's argument that disability was
unrelated to the accident, does not
challenge the compensability of the initial
accident but is an affirmative defense to
limit benefits awarded. Thus, the claimant
was entitled to a de facto award and the
employer had the burden to prove disability
was not related to the accident for which
the de facto award was entered.
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The commission's findings, which are amply supported by
credible evidence in the record, support its conclusion that
claimant was entitled to a de facto award. It was undisputed
that employer voluntarily paid benefits to claimant for over a
year. At the hearing, employer stipulated to the compensability
of claimant's accident, and only disputed the causal
relationship of claimant's disability on the ground that he
failed to disclose a previous back injury. Employer's
affirmative defense to claimant's disability did not negate
claimant's de facto award under the circumstances of this case.
Accordingly, the commission did not err in finding that claimant
was entitled to a de facto award.
II. Bona Fide Offer of Selective Employment
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Employer argues that it proved it made a bona fide offer of
selective employment within claimant's restrictions to claimant
because he performed that light-duty job for a period of five
weeks. Unless we can say as a matter of law that employer's
evidence sustained its burden of proof, the commission's
findings are binding and conclusive upon us. See Tomko v.
Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835
(1970).
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An employer seeking to terminate
compensation benefits pursuant to [Code
§ 65.2-510] must establish "(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." To
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 Nursing Home v. Underwood, 35 Va. App. 31, 37,
542 S.E.2d 785, 788 (2001).
In ruling that employer failed to prove that it made a bona
fide offer of selective employment within claimant's
restrictions, the commission found as follows:
The claimant testified that he was
consistently required to perform work that
violated his 20-pound lifting restriction.
His supervisors testified the light duty
work met the restrictions. The Deputy
Commissioner accepted the claimant's
testimony over the testimony of the
claimant's supervisors. We see no reason to
disregard that credibility determination.
Moreover, Dr. [Joseph] Stratkus noted in his
records that the claimant reported that his
work violated his 20-pound lifting
restriction. Dr. Stratkus also opined that
he would consider the claimant totally
disabled and only released him to light duty
based on financial considerations and with
high doses of pain medication. Thus, we
agree with the Deputy Commissioner that the
employer did not show a bona fide offer of
employment within the claimant's
restrictions.
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As fact finder, the commission was entitled to accept
claimant's testimony and to reject the contrary testimony of his
supervisors regarding whether the light-duty job offered by
employer exceeded his restrictions. It is well settled that
credibility determinations are within the fact finder's
exclusive purview. Goodyear Tire & Rubber Co. v. Pierce, 5
Va. App. 374, 381, 363 S.E.2d 433, 437 (1987). In light of
claimant's testimony, coupled with Dr. Stratkus' medical records
and opinions, we cannot find as a matter of law that employer's
evidence sustained its burden of proving it made a bona fide
offer of selective employment to claimant.
III. Refusal of Selective Employment
Because we affirm the commission's ruling that employer
failed to prove it made a bona fide offer of selective
employment to claimant, we need not address employer's Question
Presented III as to whether claimant unjustifiably refused
selective employment.
IV. Marketing
Because we affirm the commission's ruling that claimant was
entitled to a de facto award, we also affirm the commission's
ruling that claimant had no duty to market his residual work
capacity. See McGuinn, 5 Va. App. at 271, 362 S.E.2d at 190.
For these reasons, we affirm the commission's decision.
Affirmed.
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