COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
UNITED PARCEL SERVICE OF AMERICA AND
LIBERTY MUTUAL FIRE INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 0618-01-2 PER CURIAM
JULY 24, 2001
ANGEL-EYES BLACKFOOT
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(R. Ferrell Newman; Thompson, Smithers,
Newman, Wade & Childress, on brief), for
appellants.
(Gregory O. Harbison; Geoffrey R. McDonald &
Associates, P.C., on brief), for appellee.
United Parcel Service of America and its insurer
(hereinafter referred to as "employer") contend that the
Workers' Compensation Commission erred in finding that it failed
to prove that (1) Angel-Eyes Blackfoot (claimant) was released
to return to his pre-injury employment as of April 14, 2000 by
Dr. Kenneth Zaslav, claimant's treating physician; and (2)
claimant unjustifiably refused selective employment on April 3,
2000. 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. See Rule 5A:27.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
"General principles of workman's compensation law provide
that '[i]n an application for review of any award on the ground of
change in condition, the burden is on the party alleging such
change to prove his allegations by a preponderance of the
evidence.'" Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459,
464, 359 S.E.2d 98, 101 (1987) (quoting Pilot Freight Carriers,
Inc. v. Reeves, 1 Va. App. 435, 438-39, 339 S.E.2d 570, 572
(1986)). 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).
Here, employer relied solely upon a March 27, 2000
questionnaire completed by Dr. Zaslav as evidence that claimant
was released to return to full, unrestricted duties in his
pre-injury work as of April 14, 2000. In rejecting this
evidence, the commission "decline[d] to credit it because it was
prospective" and the record did not establish that Dr. Zaslav
even examined claimant on March 27, 2000. In so ruling, the
commission found as follows:
The employer has not presented any
evidence that the claimant was released to
full, unrestricted duties on April 14, 2000.
Dr. Zaslav's prospective release explicitly
refers to the February 2000 [Functional
Capacity Evaluation ("FCE")] on the question
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of work restrictions, and notes that the
claimant would be returned to "full duty" at
"medium" duty work on April 14, 2000
pursuant to the "details" of the FCE. The
FCE found that the claimant's condition was
insufficient to return to "heavy" duty,
pre-injury work activities, and placed
several weight-lifting restrictions below
the 70-pound weight-lifting requirement of
the claimant's pre-injury employment. Dr.
[Douglas A.] Wayne's February 2000 report
was limited to treatment of unrelated, lower
and middle back complaints, and offers
nothing of relevance to this issue or to the
issue of ongoing causation.
Based upon the prospective nature of Dr. Zaslav's March 27,
2000 release and the ambiguity of that release, in light of the
FCE which indicated that claimant could not perform his
pre-injury work, the commission, as fact finder, was entitled to
conclude that employer's evidence was insufficient to prove that
claimant was capable of performing all of the duties of his
pre-injury employment as of April 14, 2000.
We agree with the commission's conclusion that claimant's
failure to attend the hearing and offer contradicting evidence
did not require the commission to rule in employer's favor.
Employer bore the burden of proving its allegations,
irrespective of claimant's presence at the hearing.
Based upon this record, we cannot find as a matter of law
that employer met its burden of proving that claimant was
capable of performing all of the duties of his pre-injury work
as of April 14, 2000.
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II.
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). "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.'" James v. Capitol Steel Constr.
Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 489 (1989) (quoting
Ellerson v. W.O. Grubb Steel Erection Co., 1 Va. App. 97, 98,
335 S.E.2d 379, 380 (1985)). The employer bore the burden of
proving it made a bona fide offer of selective employment within
the employee's residual capacity. See American Furniture Co. v.
Doane, 230 Va. 39, 42, 334 S.E.2d 548, 550 (1985).
In denying employer's application alleging that claimant
unjustifiably refused selective employment, the commission found
as follows:
[E]mployer failed to prove it offered the
claimant work that was within his residual
capacity on April 3, 2000. [Brian] Staub
- - the only witness at the hearing - -
testified about the claimant's pre-injury
work, but offered no testimony explaining
the nature of the "light duty" work offered,
and offered no basis upon which to conclude
that such work was within the claimant's
residual capacity. Indeed, Staub had no
first-hand knowledge of the claimant's
attempt to work in March and April 2000.
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Although Dr. Zaslav's March 27, 2000 release
specifically refers to the limitations set
out in the February 2000 FCE, Staub could
not even state that he had seen or examined
this report.
In light of Staub's lack of knowledge regarding the light
duty job offered to claimant and the lack of any persuasive
evidence establishing that the light duty job was within
claimant's residual work capacity as reflected in the FCE, the
commission, as fact finder, was entitled to give little
probative weight to Staub's testimony. Absent Staub's
testimony, no evidence proved that employer offered claimant
selective employment within his residual work capacity. Thus,
we cannot find as a matter of law that employer's evidence
sustained its burden of proving that it made a bona fide offer
of suitable light duty work to claimant.
For these reasons, we affirm the commission's decision.
Affirmed.
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