Sandra C. Graham v. Consolidated Stores

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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