COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Fitzpatrick and Overton
OGDEN MARTIN SYSTEMS OF ALEXANDRIA and
INSURANCE COMPANY OF THE STATE OF
PENNSYLVANIA
MEMORANDUM OPINION *
v. Record No. 1152-97-4 PER CURIAM
SEPTEMBER 23, 1997
OLLIE LLOYD, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Lisa C. Healey; Siciliano, Ellis, Dyer &
Boccarosse, on brief), for appellants.
(Marc H. Botzin; Delaney, McCarthy, Colton &
Botzin, on brief), for appellee.
Ogden Martin Systems of Alexandria and its insurer
(hereinafter collectively referred to as "employer") contend that
the Workers' Compensation Commission (commission) erred in
finding that (1) Ollie Lloyd, Jr. (claimant) did not
unjustifiably refuse selective employment; and (2) claimant made
a good faith effort to market his residual work capacity. 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. Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the party prevailing 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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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 ruling that claimant did not refuse the light-duty job
offered by employer, the commission found as follows:
In this case, the claimant did not refuse the
light duty job. He performed it until he was
laid off. At that time the employer stated
that it had been hoped that he would be back
to his pre-injury condition by that point,
and that the job required the services of a
full-time laborer. The employer stated it
would bring the claimant back to work as soon
as he had a full release with no
restrictions. As soon as he was laid off,
the claimant registered with the VEC, and he
applied for 39 jobs prior to the April 3,
1996, hearing. Although the Deputy
Commissioner found that the claimant did not
make a bona fide effort to perform the job,
we disagree with this finding. The decision
below states that there is no evidence that
the claimant's physician approved his use of
a cane; however, Dr. Verdin's office notes of
June 21, 1995, and August 7, 1995, note that
the claimant is using a cane. The claimant
was told he could take as many breaks as he
needed, and he was not aware that his job was
in jeopardy for taking too many breaks.
Claimant's testimony and the correspondence and testimony of
employer's representatives, Glen Madelmeyer and James Mattingly,
provide credible evidence to support the commission's findings.
Therefore, those findings are binding on appeal. See James, 8
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Va. App. at 515, 382 S.E.2d at 488. Based upon this credible
evidence, the commission could reasonably conclude that claimant
did not unjustifiably refuse selective employment, and that he
made a good faith effort to market his residual work capacity.
"In determining whether credible evidence exists, the appellate
court does not retry the facts, reweigh the preponderance of the
evidence, or make its own determination of the credibility of the
witnesses." Wagner Enters., Inc. v. Brooks, 12 Va. App. 890,
894, 407 S.E.2d 32, 35 (1991).
Accordingly, we affirm the commission's decision.
Affirmed.
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