COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
SANDRA C. GRAHAM
MEMORANDUM OPINION *
v. Record No. 1464-98-3 PER CURIAM
DECEMBER 8, 1998
CONSOLIDATED STORES CORPORATION AND
LUMBERMENS MUTUAL CASUALTY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Easter P. Moses, on brief), for appellant.
(Thomas H. Miller; Monica L. Taylor; Gentry,
Locke, Rakes & Moore, on brief), for
appellees.
Sandra C. Graham ("claimant") contends that the Workers'
Compensation Commission ("commission") erred in finding that (1)
she unjustifiably refused a bona fide offer of selective
employment made to her by Consolidated Stores Corporation
("employer"); and (2) on review, she waived her argument that the
deputy commissioner erred in finding that she failed to make a
timely cure of her unjustified refusal of selective employment
pursuant to the provisions of Code § 65.2-510. 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.
I.
On appeal, we view the evidence in the light most favorable
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
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)).
In the case of a refusal of selective employment, the
employer has the burden to show that the position offered is
within the employee's residual capacity. If the employer
sustains this burden, the burden shifts to the employee to show
that refusal of employment was justified. See American Furniture
Co. v. Doane, 230 Va. 39, 42, 334 S.E.2d 548, 550 (1985); 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). Unless we
can say as a matter of law that claimant's evidence sustained her
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).
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In finding that employer met its burden of proof and
claimant failed to prove that she was justified in resigning from
the light-duty job offered to her by employer, the commission
agreed with the deputy commissioner's determination that
claimant's testimony was not credible. The commission found that
"employer was ready, willing and able to accommodate the
claimant's work restrictions and that her abandonment of the
position was caused not by her inability to perform the work, but
rather, by her mistaken belief that she could not coupled with
her dissatisfaction with the Commission's April 18, 1995
Opinion." In so ruling, the commission found as follows:
[T]he claimant contests that the job was
within her physical capacity, because the
actual job offered to her was not consistent
with the job description approved by Dr.
[Brian A.] Torres [sic] since she lifted in
excess of ten pounds, repetitively and
strenuously used her left hand and had to bag
merchandise. However, we agree with the
defendants that Dr. Torre approved such
bagging according to his January 30, 1996,
office note. Moreover, it is apparent that
the claimant brought her complaints about her
arm and her job to the attention of her
physicians who all sent her back to the work,
constitutes their approval of the position
offered. The employer accommodated the
changes in the claimant's work hours and also
accommodated her by routinely permitting her
to leave early after working only a fraction
of her scheduled work with the admonition
that she return to her doctor, a completely
reasonable recommendation.
The medical records of Dr. Torre and Dr. Louis J. Castern
support the commission's finding that employer proved that the
selective employment offered to claimant was suitable to her
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residual capacity. With respect to claimant's contention that
the actual job duties of the selective employment violated her
restrictions, the commission, in its role as fact finder, was
entitled to reject claimant's testimony and to give more weight
to the testimony of employer's witnesses and the opinions of
claimant's treating physicians. It is well settled that
credibility determinations are within the fact finder's exclusive
purview. See Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App.
374, 381, 363 S.E.2d 433, 437 (1987). Thus, based upon the
commission's credibility determination, the medical reports, and
the testimony of employer's witnesses, we cannot find as a matter
of law that claimant proved she was justified in resigning from
the selective employment offered to her by employer.
II.
Rule 3.2 of the Rules of the Virginia Workers' Compensation
Commission provides as follows:
The Commission will advise the parties of the
schedule for filing brief written statements
supporting their respective positions. The
statements shall address all errors assigned,
with particular reference to those portions
of the record which support a party's
position.
(Emphasis added.) In applying Rule 3.2, the commission has
consistently held that where a party assigns error to an issue in
its request for review, but then does not argue that issue in its
written statement, the issue may be deemed waived or abandoned.
See Leon v. Lewis-Gale Clinic, 76 O.I.C. 350 (1997); Cruesenberry
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v. Bristol Compressors, Inc., V.W.C. No. 151-41-04 (November 27,
1995); Gruner v. Northern Neck Transfer, Inc., V.W.C. No.
159-79-14 (May 17, 1994). We have recognized that the
commission, "having the right to make and enforce rules, should
also have the opportunity to construe its own rules.
Consequently, our review is limited to a determination whether
the commission's interpretation of its own rule was reasonable."
Classic Floors, Inc. v. Guy, 9 Va. App. 90, 93, 383 S.E.2d 761,
763 (1989) (citation omitted).
When a party raises an issue in a request for review, but
subsequently fails to mention that issue or present argument
relevant to that issue in the written statement, it is reasonable
for the commission to conclude that the party no longer contests
that issue or finding. No reason exists for the commission to
address an issue on review which is not contested.
We find that the commission's interpretation of Rule 3.2 was
reasonable. Accordingly, the commission did not err in ruling
that claimant waived or abandoned the issue of whether she made a
timely cure of her unjustified refusal of selective employment
under the provisions of Code § 65.2-510, because she failed to
address that issue in her written statement on review.
For these reasons, we affirm the commission's decision.
Affirmed.
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