COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
NURNIE E. REID
MEMORANDUM OPINION*
v. Record No. 2253-01-1 PER CURIAM
DECEMBER 11, 2001
CITY OF PORTSMOUTH SHERIFF'S OFFICE AND
TRIGON ADMINISTRATORS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Karen M. Rye; Kenneth J. Coughlan; Law
Office of Karen M. Rye, on brief), for
appellant.
(William C. Walker; Amanda C. Castel;
Taylor & Walker, P.C., on brief), for
appellees.
Nurnie E. Reid (claimant) contends the Workers'
Compensation Commission erred in finding that (1) the City of
Portsmouth Sheriff's Office (employer) proved that it made a
bona fide offer of selective employment to claimant; (2)
claimant failed to prove that he was justified in refusing
employer's offer of selective employment; and (3) claimant
failed to prove that he cured his unjustified refusal of
selective employment. Upon reviewing the record and the briefs
of the parties, we conclude that this appeal is without merit.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Accordingly, we summarily affirm the commission's decision.
Rule 5A:27.
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).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
"If there is evidence, or reasonable inferences can be drawn
from the evidence, to support the Commission'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).
On November 8, 1997, while working as a deputy sheriff,
claimant injured his back, neck, and knees, when he was struck
by a vehicle while directing traffic at an accident scene. The
commission subsequently entered awards for temporary total
disability benefits from July 7 through August 15, 1999, and
from February 25 through April 3, 2000. On October 18, 2000,
claimant filed a claim seeking reinstatement of temporary total
disability benefits. At the hearing, claimant sought temporary
total disability benefits beginning November 30, 2000. The
parties stipulated that claimant was restricted to light duty
- 2 -
from November 30, 2000 through January 22, 2001 and that he was
temporarily totally disabled beginning January 23, 2001.
In his September 17, 1999 office notes, Dr. Stephen C.
Blasdell, an orthopedic surgeon, opined that claimant could
return to work with permanent restrictions on kneeling and
lifting over thirty pounds. On March 29, 2000, Dr. Anthony C.
Cetrone, an emergency and occupational medicine specialist,
released claimant to a D.A.R.E. educator job, stating that he
could lift up to twenty pounds occasionally and ten pounds
frequently. Dr. Cetrone opined that claimant could not perform
work that might place him in a physical confrontation.
After claimant's accident and at some point before August
2000, employer provided claimant with a light duty job in the
D.A.R.E. program. Sheriff Gary W. Waters informed claimant that
he could no longer offer the D.A.R.E. job to claimant. As a
result, Waters contacted the state to see what type of non-sworn
civilian employment he could offer to claimant. Waters was
informed that there was a non-sworn job available in
classification of records for inmates at the jail.
On September 29, 2000, claimant received a letter from
Waters stating that there were no light duty jobs available, but
that he had been authorized to offer claimant a civilian,
non-sworn position at a salary close to claimant's pre-injury
salary. Claimant was asked to inform employer of his decision
- 3 -
no later than ten days from the date of the letter. Waters
testified that the job involved filing and keeping records of
inmates at the jail in the sheriff's department. Waters
testified that this work was within the claimant's restrictions.
Waters stated that he was not sure whether he talked to claimant
specifically about the job. Claimant never responded to the job
offer. Rather, Jim Martin, claimant's disability attorney, told
Waters that claimant was not going to accept the job. Waters
testified that Martin did not give any reason for claimant's
rejection of the job.
Lauren DeRidder, employer's claims manager, testified that
she spoke with claimant about the job offer, but not
specifically about what the job entailed because she did not
have that information. However, it was her understanding that
the job fell within claimant's restrictions. She and claimant
discussed temporary partial disability benefits in the event
that there was a wage differential, medical benefits, and other
aspects of claimant's claim. At that time, claimant was
undecided regarding the job offer. DeRidder testified that just
before the deadline for the claimant to respond to the job
offer, they talked again and claimant was still undecided.
DeRidder "had the impression that he understood pretty much what
the job was and the concern was that it was not a sworn
- 4 -
position, it was a civilian position." Claimant expressed that
concern to DeRidder.
Claimant testified that after his accident through December
2000, he performed a part-time sedentary security job that he
had held prior to the accident. He worked one night per week
for four hours watching the parking lot of a bingo hall while
sitting in his vehicle.
Bona Fide Offer of Selective Employment
"Code § 65.2-510 was enacted . . . to
encourage employers to procure employment
suitable to partially incapacitated
employees." An employer seeking to
terminate compensation benefits pursuant to
the statute 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) (citations omitted).
Claimant contends that employer's evidence failed to prove
that it made a bona fide job offer to him. However, based upon
claimant's undisputed physical restrictions, his ability to
perform the D.A.R.E. position, Waters' testimony that the
selective employment was within claimant's restrictions, and the
- 5 -
lack of any evidence that claimant ever expressed concern to
Waters or DeRidder that the job's duties were not within his
restrictions, the fact finder could infer that the filing and
recordkeeping job constituted a bona fide offer. Thus, credible
evidence supports the commission's finding that employer made a
bona fide offer of selective employment to claimant.
Unjustified Refusal
Upon a showing by employer of a bona
fide offer of selective employment, "the
employee bears the burden of establishing
justification for refusing such employment."
"To support a finding of justification to
refuse suitable selective employment, 'the
reasons advanced must be such that a
reasonable person desirous of employment
would have refused the offered work.'"
Id. (citation omitted).
In ruling that claimant unjustifiably refused employer's
offer of selective employment, the commission found as follows:
[T]he evidence establishes that the
claimant's employer was well aware of the
claimant's longstanding work restrictions,
and indeed had been accomodating those
restrictions. When the D.A.R.E. position
was no longer available, Sheriff Waters
procured a record-keeping job for the
claimant in the jail portion of the
sheriff's office at a salary close to the
claimant's preinjury salary. This job was
offered to the claimant, although the
details of the job were not specifically
described in the letter from Sheriff Waters
or in subsequent conversations.
Nonetheless, the claimant did not express
any concern to Sheriff Waters or Ms.
DeRidder that the job exceeded his
restrictions. He never rejected the job
- 6 -
personally; rather, his disability attorney
called and rejected the job on the
claimant's behalf. No reason was given for
the claimant's decision not to take the job.
Specifically, neither the claimant nor his
attorney stated that he was rejecting the
job because it exceeded his restrictions or
because they were concerned that it exceeded
his restrictions. Ms. DeRidder testified
that right before the deadline for
responding to the offer, the claimant seemed
to understand the job requirements and the
only concern expressed by him was that the
job was a civilian non-sworn position.
Based upon the lack of any evidence that claimant refused
the job because he did not believe its duties fell within his
physical restrictions and DeRidder's testimony that claimant's
only concern was that the position was a civilian non-sworn job,
the commission, as fact finder, was entitled to infer that
claimant was not justified in refusing the offer on that basis.
Cure of Unjustified Refusal of Selective Employment
Claimant contends that the commission erred in finding that
his January 22, 2001 letter to employer's attorney requesting
light duty employment did not constitute a good faith cure of
his unjustified refusal of selective employment.
The record established that claimant made no contact with
employer from the time he was offered the light duty
recordkeeping job on September 29, 2000 through January 22,
2001. The January 22, 2001 letter was sent by claimant's
attorney to employer's attorney one day before claimant was
scheduled to undergo arthroscopic surgery. At that time,
- 7 -
claimant knew that he would be totally disabled for an
indeterminate period of time after the surgery. In addition,
claimant knew that if he had been offered light duty employment
by the sheriff's office, he would not be able to accept it at
any time in the near future. Furthermore, at the time the
January 22, 2001 letter was sent, claimant had been granted
disability retirement by the state.
Based upon this record, the commission, as fact finder, was
entitled to conclude that this "last-minute letter . . . was not
sent in good faith," and failed to establish a cure of
claimant's unjustified refusal of selective employment.
For these reasons, we affirm the commission's decision.
Affirmed.
- 8 -
Nurnie Reid v. City of Portsmouth Sheriff's Office
Combined Opinion