COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Agee and Senior Judge Coleman
PRO TEMPS TEMPORARY SERVICE AND
AMERICAN ALTERNATIVE INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 2021-01-1 PER CURIAM
DECEMBER 11, 2001
DANIEL P. CARNER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Todd G. Patrick; Mark S. Davis; Carr &
Porter, LLC, on briefs), for appellants.
(John J. Flora, III; Bennett and Zydron,
P.C., on brief), for appellee.
Pro Temps Temporary Service and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that Daniel P. Carner
(claimant) proved that he (1) did not unjustifiably refuse
selective employment offered in October 2000; (2) cured his May
10, 2000 unjustified refusal of medical treatment on July 11,
2000; and (3) had no duty to market his residual work capacity.
Upon reviewing the record and the briefs of the parties, 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.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
Unjustified Refusal of Selective Employment
"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.'" Id. at 515, 382 S.E.2d at 489
(quoting Ellerson v. W.O. Grubb Steel Erection Co., 1 Va. App.
97, 98, 335 S.E.2d 379, 380 (1985)).
In ruling that claimant did not unjustifiably refuse
employer's offer of selective employment, the commission found
as follows:
We next turn to the deputy
commissioner's decision that the claimant
did not unjustifiably refuse an offer of
selective employment in October 2000. This
finding was specifically predicated on the
deputy commissioner's finding that the
claimant was not "properly released to light
duty," and thus any offer of selective
employment was inappropriate. The deputy
commissioner based this finding on evidence
of psychiatric treatment for "depression
related to the work injury." There was no
medical release, however, concerning the
claimant's psychiatric condition.
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The employer did not address on Review
the deputy commissioner's finding concerning
the absence of an appropriate release to
light duty. Instead, the employer focused
on the claimant's physical restrictions, and
how they compared with the proffered
employment. We believe the deputy
commissioner correctly determined that the
claimant was not properly released to light
duty, and thus was justified in refusing the
proffered employment.
The medical records of Dr. Daniel E. Fischer, claimant's
treating psychiatrist, constitute credible evidence to support
the commission's findings. Dr. Fischer's records established
that claimant was under treatment for depression causally
related to his compensable injury by accident. Nothing in those
records showed that Dr. Fischer believed that claimant was
capable of performing light duty work. Based upon Dr. Fischer's
medical records, the commission could conclude that the evidence
failed to prove that claimant had been released to light duty
work from a psychiatric standpoint. Accordingly, in the absence
of an appropriate release to light duty work, the evidence
failed to establish that claimant unjustifiably refused
selective employment.
Unjustified Refusal of Medical Treatment
In affirming the deputy commissioner's decision that
claimant cured his refusal of medical treatment on July 11,
2000, the commission found as follows:
The deputy commissioner found that the
claimant cured his May 10, 2000, refusal of
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medical treatment at Spineworks by appearing
for treatment from Dr. [Steven L.] Gershon
on July 11, 2000. The employer argues that
this was only a "verbal assertion that he
wanted to continue in the program" and was
inadequate to effectuate a cure. We believe
that the claimant cured his refusal on July
11, 2000. Dr. Gershon noted that he
initiated telephone contact with Spineworks
personnel to have the claimant admitted
again into the program. The claimant also
began treatment at the V.A. Pain Clinic when
Spineworks turned him down. Moreover,
Dr. Gershon specifically approved this
treatment. The evidence showed more than
"verbal assent" to the Spineworks program,
but real efforts on behalf of the claimant
to receive treatment—two visits with
Dr. Gershon and participation in a pain
clinic.
Based upon Dr. Gershon's medical records and claimant's
testimony, the commission, as fact finder, could reasonably
conclude that claimant, in good faith, cured his refusal of
medical treatment when he returned to Dr. Gershon, who attempted
to get claimant back into the Spineworks program, albeit
unsuccessfully. As an alternative, claimant began treatment at
a pain clinic recommended by Dr. Gershon. This credible
evidence showed more than mere "verbal assent" by claimant to
the Spineworks program. Rather, it established that he took
affirmative action in seeking treatment, and it supported the
commission's finding that claimant cured his May 10, 2000
refusal of medical treatment.
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Duty to Market Residual Work Capacity
Because we affirm the commission's finding that the
evidence failed to prove that claimant was released to light
duty from a psychiatric standpoint, we need not address this
issue.
For the reasons stated, we affirm the commission's
decision.
Affirmed.
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