COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
ROCK CITY MECHANICAL, INC. AND
AMERICAN ALLIANCE INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 2086-00-3 PER CURIAM
DECEMBER 19, 2000
THOMAS LEE BARRY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Daniel E. Lynch; John T. Cornett, Jr.;
Williams & Lynch, on brief), for appellants.
Daniel R. Bieger; Copeland, Molinary &
Bieger, P.C., on brief), for appellee.
Rock City Mechanical, Inc. and its insurer (hereinafter
referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that Thomas Lee Barry
was justified in refusing selective employment offered to him by
employer. 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.
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).
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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).
So viewed, the evidence proved that on May 27, 1999,
claimant sustained a compensable injury to his left knee. The
commission entered an award on November 2, 1999, for temporary
total disability benefits beginning May 28, 1999.
On June 15, 1999, Dr. Fred Knickerbocker, claimant's
treating physician, performed arthroscopic surgery on claimant's
left knee to repair a torn medial meniscus. On October 13,
1999, Dr. Knickerbocker released claimant to return to work with
restrictions against repetitive squatting, kneeling, or
climbing.
On November 10, 1999, employer offered claimant light-duty
work within his residual capacity, working in a metal shop at a
wage greater than his pre-injury wage. Claimant accepted this
employment, and continued to work in this job until January 12,
2000.
On that date, employer underwent a workforce reduction and
offered claimant a job in "the field," which would require that
he walk approximately three-fourths of a mile uphill from his
assigned parking space and three-fourths of a mile back downhill
to his parking space, while carrying his toolbox. The road he
would have to walk on was muddy, hilly, and rocky. Claimant's
toolbox weighs approximately fifty pounds. Claimant told
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employer that he did not believe he was medically permitted to
walk that distance carrying his tools, and he did not believe
that he could do it. As a result, employer laid off claimant.
Claimant testified regarding his efforts after that date to
market his residual capacity.
Employer's representative testified that claimant could
have stored his tools on the job site in a "gang box." Claimant
testified that his tools were valued at between $2,000 and
$4,000 and that some of them were irreplaceable. He stated that
there had been thefts from the "gang boxes" and that employer
was unwilling to replace the tools. For this reason, he did not
want to store his tools in the "gang box." Employer did not
rebut claimant's testimony.
On January 17, 2000, Dr. Knickerbocker examined claimant
and opined that he could not walk more than fifty feet while
carrying his toolbox and that he was not allowed to squat,
kneel, or climb on a repetitive basis. In a January 20, 2000
letter to claimant's counsel, Dr. Knickerbocker opined that the
claimant could not walk "3/4 mile up a hill carrying a heavy
toolbox without aggravating his knee." Claimant's restrictions
were made permanent on February 14, 2000.
"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
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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)).
"When the employer establishes that selective employment
was offered to an employee that was within the employee's
capacity to work, the employee bears the burden of establishing
justification for refusing the offered employment." Food Lion,
Inc. v. Lee, 16 Va. App. 616, 619, 431 S.E.2d 342, 344 (1993).
"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 was justified in refusing
employer's offer of selective employment, the commission found
as follows:
It is apparent from the medical record that
the claimant was restricted from walking the
required distance from the parking lot to
the job site while carrying his tool box.
The claimant testified that some of these
tools are irreplaceable, and the total value
of the tools is from $2,000.00 to $4,000.00.
The employer argues that the claimant is not
required to carry his tools to the job site
since a "gang box" is in place to store the
tools. The claimant testified that there
have been thefts from those "gang boxes" and
that the employer is not willing to
reimburse employees or replace tools lost
due to theft. This testimony was not
refuted by the employer. We find that the
claimant's refusal of selective employment
offered on January 12, 2000, was justified.
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Claimant's unrebutted testimony and Dr. Knickerbocker's
medical records and opinions constitute credible evidence to
support the commission's findings. Those findings are binding
and conclusive upon us on appeal, and were sufficient to support
the commission's decision that claimant was justified in
refusing selective employment. 1
For these reasons, we affirm the commission's decision.
Affirmed.
1
Because we find that claimant was justified in refusing
selective employment, we need not address the marketing issue.
However, we note that there is ample credible evidence to
support the commission's finding that claimant adequately
marketed his residual capacity after January 12, 2000.
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