Billy R. Shea v. Transportation Unlimited

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Bumgardner
Argued at Richmond, Virginia

BILLY R. SHEA
MEMORANDUM OPINION* BY
v. Record No. 2532-99-2 JUDGE RUDOLPH BUMGARDNER, III
MAY 16, 2000
TRANSPORTATION UNLIMITED, INC. AND
LUMBERMEN'S UNDERWRITING ALLIANCE

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Gregory O. Harbison (Geoffrey R. McDonald;
Geoffrey R. McDonald & Associates, P.C., on
brief), for appellant.

E. Scott Austin (Monica L. Taylor; Gentry,
Locke, Rakes & Moore, on brief), for
appellees.

Billy R. Shea appeals a decision of the Workers'

Compensation Commission that he unjustifiably refused selective

employment offered by Transportation Unlimited, Inc. The

employee contends the offer of selective employment was not bona

fide and his refusal to accept was justified. Finding no error,

we affirm.

On appeal, we view the evidence and all reasonable

inferences deducible from it 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). The factual

* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
findings by the commission that are supported by credible

evidence are conclusive and binding upon this Court. See Code

§ 65.2-706; Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227,

229, 409 S.E.2d 824, 826 (1991).

The employer is a national company that leases drivers to

trucking companies. The employee suffered a compensable injury

to his back while working as a truck driver for the employer on

November 19, 1995. The employer compensated the employee for

temporary total disability benefits.

The employee was released to restricted work June 6, 1998.

The employer's industrial claims manager, Brian Beck, reviewed

the employee's job restrictions with its insurer and its account

representative in Virginia, Glen Pauley. Together they found a

"QAT supervisor" position for which the employee was suited.

The employee's physician approved the position for the employee.

QAT is the employer's only customer in Virginia. A "QAT

supervisor" worked for the employer supervising its drivers at

the QAT site in Petersburg but was not an employee of QAT. The

employer used the term, "QAT supervisor," as its internal

designation of the customer site at which its supervisor worked.

By letter dated July 27, 1998, Beck offered the "QAT

supervisor" position to the employee and advised him to contact

Pauley for his "work assignment and reporting details." The

employee called Pauley to report to work. At that time, Pauley

told the employee that he could not accept the job because he

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had been barred from QAT's property by a restraining order.

Shortly after his injury in 1995, the employee was convicted of

larceny of skids owned by QAT. The court barred him from QAT's

property.

The employee contends the employer offered him a job they

knew he could not accept. The deputy commissioner found the

employer's offer of selective employment was bona fide and

within the employee's residual capacity and concluded the

employee unjustifiably refused the offer. The commission

affirmed that decision.

To establish unjustified refusal of selective employment,

an employer must prove a bona fide offer within the employee's

residual capacity. See American Furniture Co. v. Doane, 230 Va.

39, 42, 334 S.E.2d 548, 550 (1985). Beck testified that the

employer had four other employees working as supervisors of its

drivers at the QAT site. Beck testified that he was unaware the

employee was barred from entering upon QAT's property. The QAT

supervisor position existed, was available, and was approved by

the employee's physician. Credible evidence supports the

commission's decision that the employer tendered an offer of

selective employment within the employee's residual capacity.

"[W]hen an employer invokes the bar of Code § 65.2-510 and

establishes that an injured employee has been offered employment

suitable to his residual capacity, the burden of persuasion

shifts to the employee to show justification for refusing the

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offer." Ballweg v. Crowder Contracting Co., 247 Va. 205, 209,

440 S.E.2d 613, 615 (1994) (citations omitted). An employee has

not been entitled to compensation benefits when his refusal is

based upon willful conduct after the work injury, and not his

physical disabilities related to the injury. See Johnson v.

City of Clifton Forge, 9 Va. App. 376, 377, 388 S.E.2d 654, 655

(1990) (en banc) (claimant's poor performance during interview,

which precluded offer of selective employment, amounted to

unjustified refusal); James v. Capitol Steel Constr. Co., 8 Va.

App. 512, 515, 382 S.E.2d 487, 489 (1989) (employee's refusal to

cooperate with placement efforts tantamount to refusal of

employer's offer).

Similarly, compensation benefits were terminated for

employees discharged for cause from selective employment. See

Marval Poultry Co. v. Johnson, 224 Va. 597, 601, 299 S.E.2d 343,

345 (1983) (employee discharged for dishonesty from employment

secured by employer forfeits benefits); Goodyear Tire & Rubber

Co. v. Watson, 219 Va. 830, 833, 252 S.E.2d 310, 312-13 (1979)

(employee justifiably discharged from employment secured by

employer for poor work performance is not entitled to benefits).

After his injury, the employee was convicted of stealing

from QAT and barred from its premises. Beck was unaware of the

restraining order. The employee, not the employer, was

responsible for the wage loss "properly attributable to his

wrongful act rather than his disability." Chesapeake & Potomac

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Telephone Co. v. Murphy, 12 Va. App. 633, 639-40, 406 S.E.2d

190, 193, aff'd en banc, 13 Va. App. 304, 411 S.E.2d 444 (1991).

See also Richfood, Inc. v. Williams, 20 Va. App. 404, 410, 457

S.E.2d 417, 420 (1995) (employee's failure to pass drug test

resulted in termination for cause and a forfeiture of benefits).

Cf. Food Lion, Inc. v. Newsome, 30 Va. App. 21, 24, 515 S.E.2d

317, 319 (1999) (employee not terminated for misconduct is

entitled to cure constructive refusal).

For these reasons, we affirm the commission's finding that

the employee unjustifiably refused selective employment.

Affirmed.

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