COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Kelsey and Senior Judge Willis
Argued at Chesapeake, Virginia
BRENDA O. CLEMENTS
OPINION BY
v. Record No. 2161-02-1 JUDGE ROBERT P. FRANK
APRIL 1, 2003
RIVERSIDE WALTER REED HOSPITAL AND
RECIPROCAL OF AMERICA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Matthew H. Kraft (Chanda W. Stepney; Rutter,
Walsh, Mills & Rutter, on brief), for
appellant.
Karen A. Gould (Angela C. Fleming; Crews &
Hancock, on brief), for appellees.
Brenda O. Clements (claimant) appeals from a decision of
the Workers' Compensation Commission (commission) which granted
her employer's application for termination of her temporary
partial disability compensation award. She claims she did not
unjustifiably refuse the light-duty job offer of Riverside
Walter Reed Hospital (employer). She also contends her work
with Mary Kay Cosmetics constituted sufficient marketing of her
residual work capacity. Finally, claimant argues employer
implicitly conceded claimant was totally disabled, thereby
entitling her to temporary total disability payments during the
time she was on sick leave from work. For the reasons stated
below, we reverse and remand for further consideration by the
commission.
Background
Claimant began working for employer as a registered nurse
in the hospital's emergency room in 1978. She had a compensable
workplace injury in 1998. The commission awarded her temporary
total disability, which was later changed to temporary partial
disability. Her medical records indicated she could not do any
heavy lifting or spend significant amounts of time standing.
Claimant returned to work, although at a different job and with
reduced hours. Initially, she performed secretarial work, but
eventually she was placed in the cardiac rehabilitation unit of
the hospital in a temporary, part-time position. However,
employer continued to classify claimant as a full-time employee
and to provide claimant with the same benefits she had received
while working full time, even though she now worked half her
previous hours. According to testimony from employer's director
of human resources, claimant earned, on average, $410 every
two-week pay period while working in the cardiac unit. 1
Approximately two and a half years after the accident,
employer decided to offer claimant a "permanent part-time
position," which amounted to her current job with fewer
1
On brief, employer claims claimant earned $370 per week in
this position.
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benefits. If she accepted the job, then the sick leave and
vacation time that claimant had accrued in the twenty-plus years
she had worked for employer would be forfeited without
compensation. 2 At the time, claimant carried the maximum amount
of sick leave allowed by employer, worth approximately $14,000. 3
She refused the offered position, and employer applied to the
commission on April 3, 2001 for the termination of benefits
based on an unjustified "refusal of light duty work."
Although employer suggested claimant would no longer have a
job if she refused the new position, claimant was allowed to
take sick leave and vacation time as of March 30, 2001.
Claimant gave employer a Medical Certification Statement signed
by her doctor, as required by employer's sick leave policy. The
Statement did not indicate claimant was totally disabled. To
2
Kent Taylor, the director of human resources for employer,
initially testified, "When an individual changes from full-time
to part-time status, they lose their sick leave that they had
accrued on the books." He later explained, "She [would] lose
sick leave, she [would] lose life insurance, but we indicated in
that letter we would hold her sick leave for approximately one
year in case she goes into a full-time position, that that would
be reinstated." No testimony ever indicated that claimant would
be able to take a full-time job in the future nor that employer
would consider her for a full-time job within the one-year grace
period. Employer had no jobs available that met claimant's
medical restrictions in the six months after her refusal to
accept the "new" permanent, part-time position.
3
The record does not indicate whether these benefits were
vested and realizable or non-vested. However, employer never
contradicted the $14,000 value. Additionally, when she turned
down the job offer, claimant was allowed to use the entirety of
these benefits.
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the contrary, her doctor simply noted that claimant could not
"do heavy lifting or overhead work." 4
Employer paid claimant for seventy-two hours of work for
each two-week pay period from April until November 17, 2001,
when claimant's sick leave and vacation time ran out. During
that time, employer gave claimant a raise in her base pay. In
November, although claimant indicated a desire to return to
work, employer did not have any positions available that fit
within her doctor's restrictions.
While working for employer in 1997, claimant began selling
Mary Kay Cosmetics products. In 2000, she reached the position
of "director," which involved overseeing a sales force of at
least thirty people and carrying an inventory of over $10,000
worth of products. She received a commission for her own sales
and the sales of the people working under her. However, because
she could not manage the requirements of the position and her
work for employer, she gave up the directorship.
While on sick leave, claimant again increased her
involvement with Mary Kay. While her first few months of income
were inconsistent, by August 2001 claimant was averaging over
4
Claimant never filed a change-of-condition claim alleging
she was now totally disabled.
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$400 a month. 5 She regained her "director" status in December
2001.
The deputy commissioner heard testimony on January 22, 2002
and accepted numerous exhibits. The deputy commissioner found
claimant refused the "permanent part-time position" only because
she "would lose some benefits." He concluded he did "not feel
this was a justifiable reason to refuse." He also found
claimant did not market her remaining work capacity.
The full commission affirmed the deputy's ruling. The
commission found:
It is clear that the claimant turned down
the permanent job due [to] a loss of some
benefits which she had been mistakenly
receiving through hospital error. We find
that the loss of benefits is not a valid
reason to turn down an offer of selective
work and therefore the claimant's refusal
was not justified. We further find that the
claimant failed to prove that she cured her
refusal within the six-month timeframe from
the last day for which compensation was
paid. See [Code] § 65.2-510(C). The
claimant's employment with Mary Kay
Cosmetics is not comparable employment and
is insufficient evidence of a cure.
* * * * * * *
Moreover, we reject the claimant's arguments
that the claimant's receipt of medical leave
stays the six-month period for curing a
refusal of light duty, or provides a basis
5
In April 2001, claimant made $133.30; in May, $19.98; in
June, $138.27; and in July, $57.65. Starting in August 2001,
claimant made significantly more money. In August, she received
$484.07; in September, $432.54; in October, $380.84; and in
November, $410.39.
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for an award of temporary total disability.
The hospital's decision to allow the
claimant to use her leave has no bearing on
our decision here and we find that the Act
does not provide for a stay of the six-month
period during payment of a fringe benefit.
Analysis
Employer petitioned the commission for a change of
condition based on claimant's unjustified refusal to accept a
job offer. Under Code § 65.2-510:
A. If an injured employee refuses
employment procured for him suitable to his
capacity, he shall only be entitled to the
benefits provided for in §§ 65.2-503 and
65.2-603 . . . during the continuance of
such refusal, unless in the opinion of the
Commission such refusal was justified.
B. If an injured employee cures his
unjustified refusal by accepting employment
suitable to his capacity at a wage less than
that originally offered, the employer shall
pay or cause to be paid to the injured
employee during his partial incapacity
pursuant to § 65.2-502, a weekly
compensation equal to 66 2/3 percent of the
difference between his average weekly wages
before his injury and the average weekly
wage the employee would have earned by
accepting the original proffered light duty
employment.
C. A cure of unjustified refusal pursuant
to subsection A may not be established if
the unjustified refusal lasts more than six
months from the last day for which
compensation was paid before suspension
pursuant to this section; however, the
six-month period may be extended by the
number of days a claimant is totally
disabled if the disability commenced during
such six-month period.
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An employer bears the burden initially to prove a claimant
unjustifiably refused a job. Westmoreland Coal Co. v. Russell,
31 Va. App. 16, 20, 520 S.E.2d 839, 841 (1999). An employer
must establish "'(1) a bona fide job offer suitable to the
employee's capacity; (2) procured for the employee by the
employer; and (3) an unjustified refusal by the employee to
accept the job.'" Hillcrest Manor Nursing Home v. Underwood, 35
Va. App. 31, 37, 542 S.E.2d 785, 788 (2001) (quoting Ellerson v.
W.O. Grubb Steel Erection Co., 1 Va. App. 97, 98, 335 S.E.2d
379, 380 (1985)). Once an employer has established these
elements, the burden then shifts to the claimant to "show
justification for refusing the offer." Ballweg v. Crowder
Contracting Co., 247 Va. 205, 209, 440 S.E.2d 613, 615 (1994).
Claimants can cure unjustifiable refusals of selective
employment by marketing their residual work capacity. Code
§ 65.2-510(B); Virginia Wayside Furniture, Inc. v. Burnette, 17
Va. App. 74, 76, 435 S.E.2d 156, 157 (1993).
The commission must examine the totality of evidence
offered on these issues. See Newport News Shipbuilding and Dry
Dock Co. v. Lawrence, 38 Va. App. 656, 662, 568 S.E.2d 374, 377
(2002) (noting that, when determining whether an employee
refused employment, the commission determines this fact "from
the totality of the evidence"). We will not disturb the
commission's findings, even if the record includes contradictory
evidence, so long as credible evidence, or reasonable inferences
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from that evidence, supports the commission's findings.
Hillcrest Manor Nursing Home, 35 Va. App. at 34, 542 S.E.2d at
787; Food Lion, Inc. v. Lee, 16 Va. App. 616, 619, 431 S.E.2d
342, 344 (1993).
A. Refusal of Selective Employment
The commission found claimant turned down employer's job
offer because she would lose "some benefits which she had been
mistakenly receiving through hospital error." The commission
concluded, "the loss of benefits is not a valid reason to turn
down an offer of selective work and therefore the claimant's
refusal was not justified." In this case, the commission made
incomplete evidential findings and erred in its legal analysis.
While the evidence proved claimant refused the offer of
permanent, part-time employment in part because her benefits
package would be reduced, claimant also discussed the loss of
the benefits she had already accrued. The evidence proved
claimant would lose approximately $14,000 in sick leave and
vacation time she had earned over the more than twenty years she
worked for employer. While the hospital "mistakenly" allowed
her to continue to accrue full-time benefits when she began
working part-time after her compensable injury in 1998, a
significant portion of the $14,000 of leave was earned while she
worked full time. Additionally, while for two years claimant
received a benefit that employer's policies did not provide for
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part-time employees, employer had never argued she was not
entitled to the benefits she accrued through their mistake.
If claimant had accepted the permanent, part-time job, she
would have received no compensation for this accrued benefit.
Instead, she was allowed to use the sick leave and vacation time
to receive a full-time salary for over seven months after her
refusal of the job. 6 The commission's opinion ignores these
facts and instead mentions only the loss of future benefits to
which claimant was not entitled. The commission erred in
failing to weigh and analyze claimant's argument that her
entitlement to the previously accrued benefits justified her
refusal of the permanent, part-time position offered by
employer.
Additionally, the commission's opinion suggests, even if
the accrued leave benefits were considered, the loss of benefits
could never constitute justification for refusal of selective
employment. We disagree with this legal conclusion.
We have explained previously that determining whether
legitimate justification for refusing selective employment
exists involves consideration of numerous, varied factors.
To support a finding of justification to
refuse suitable selective employment, "the
reasons advanced must be such that a
6
The record suggests claimant continued to work for
employer after employer filed for the change of condition.
However, the commission did not discuss, nor did counsel argue,
this point. Therefore, we will not address it here.
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reasonable person desirous of employment
would have refused the offered work."
[Johnson v. Virginia Employment Comm'n , 8
Va. App. 441, 452, 382 S.E.2d 476, 481
(1989).] Furthermore, the determination of
justification to refuse employment involves
"a much broader inquiry than merely
considering whether the intrinsic aspects of
the job are acceptable to the prospective
employee." Id. at 447, 382 S.E.2d at 478.
Justification to refuse an offer of
selective employment "may arise from factors
totally independent of those criteria used
to determine whether a job is suitable to a
particular employee." Id.
Food Lion, Inc., 16 Va. App. at 619, 431 S.E.2d at 344.
Justifiable reasons for refusing a job vary and can be
unrelated to the ability to perform the work. See Ballweg, 247
Va. at 209, 440 S.E.2d at 615 (noting the commission has
accepted various economic reasons for refusing employment that
are unrelated to job performance); DePaul Medical Ctr. v.
Brickhouse, 18 Va. App. 506, 508, 445 S.E.2d 494, 495 (1994)
(noting "it is impossible to anticipate and legislate every
potential event" that justifies refusal of selective
employment). In the proper context, a claimant could prove that
denial of or a change in benefits would lead a reasonable person
to refuse the offered work.
On remand, the commission must consider the totality of the
evidence and determine whether claimant unjustifiably refused
selective employment.
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B. Cure within Six Months of Last Disability Payment
The commission found claimant did not cure her refusal of
selective employment. If the commission determines on remand
that claimant unjustifiably refused employer's job offer, then
it must address this issue again. Therefore, we address the
commission's ruling on cure.
The commission found, "During the six months after April 3,
2001, the claimant never advised [employer's agent] that she was
willing to take the permanent part-time position at the
hospital." While some evidence contradicts this factual
finding, the record does contain testimony that claimant did not
indicate to the hospital after April 3 that she was willing to
accept either the originally offered position or any other
appropriate job from employer. We will not disturb this finding
on appeal. See Hillcrest Manor Nursing Home, 35 Va. App. at 34,
542 S.E.2d at 787.
The commission also found claimant did not cure her refusal
by working with Mary Kay Cosmetics, explaining that employment
was "not comparable employment and is insufficient evidence of a
cure." The commission did not explain this ruling further.
If claimant unjustifiably refused the selective employment
offered her, her disability benefits do not cease permanently.
If she can cure her refusal, then she is entitled to
reinstatement of those benefits. See id. at 36-37, 542 S.E.2d
at 788; Food Lion, Inc. v. Newsome, 30 Va. App. 21, 25, 515
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S.E.2d 317, 319 (1999). She can also partially cure her
refusal. 7 See Code § 65.2-510(B); Hillcrest Manor Nursing Home,
35 Va. App. at 37, 542 S.E.2d at 788.
A claimant can cure an unjustified refusal in several ways.
She can continue working for the employer. 8 See id. at 39, 542
S.E.2d at 789 ("Likewise, continued part-time, selective
employment, with [employer], following the full-time offer,
constituted a partial cure of her prior unjustified refusal of
such employment . . . ."). Reasonable efforts to market an
employee's residual capacity can also cure an unjustified
refusal of selective employment. Cf. Greif Cos. v. Sipe, 16
Va. App. 709, 715, 434 S.E.2d 314, 318 (1993) ("A disabled
employee with residual marketable capacity who claims benefits
. . . must prove that he or she has made a reasonable attempt to
procure work . . . ."); Nat'l Linen Service v. McGuinn, 8
Va. App. 267, 269, 380 S.E.2d 31, 33 (1989) ("Code § 65.1-63
[recodified at Code § 65.2-510] . . . clearly require[s] a
disabled employee to make a 'reasonable effort' to market his
remaining work capacity in order to receive continued workers'
compensation benefits."). Finding other, comparable employment
7
Claimant has never argued that she partially cured her
refusal.
8
Claimant did not argue that she continued to work for
employer while on sick leave and thereby cured any unjustified
refusal.
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can cure a refusal as well. See Virginia Wayside Furniture,
Inc., 17 Va. App. at 76, 435 S.E.2d at 157 ("[A] partially
disabled employee can cure an unjustified refusal of selective
employment . . . by obtaining other comparable employment.");
Food Lion, Inc., 30 Va. App. at 25-26, 515 S.E.2d at 319 ("Code
§ 65.2-510 allows employees to cure an unjustified refusal of
selective employment by obtaining equivalent selective
employment.").
The commission found claimant's employment with Mary Kay
was not comparable work. The record supports that conclusion.
At most, the evidence indicates claimant earned half the amount
of her salary from employer with her new job. Nothing in the
record suggests claimant did anything else to market her
residual capacity. "[T]he mere fact that the employee obtained
a new job, where the pay is substantially less than that
received at the old job, is, standing alone, insufficient proof
of making a reasonable effort to market one's remaining work
capacity." Nat'l Linen Service, 8 Va. App. at 268, 380 S.E.2d
at 32.
As the evidence supports the commission's finding, we will
not disturb this factual finding on appeal. Claimant,
therefore, did not cure her refusal within the six months from
the last day employer claims she was paid disability benefits.
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C. Entitlement to Temporary Total Disability
Claimant also argues employer "acknowledged" her total
disability when it accepted the Medical Certification Statement
that supported her request for sick leave and, thereby, admitted
she was entitled to an award of temporary total disability
during the period she took leave. 9 Employer argues that allowing
claimant to use her sick leave and thereby continue to receive
income from employer does not implicitly concede she was totally
disabled at that time. We agree with employer.
The evidence does not suggest employer required employees
to be totally disabled under the Workers' Compensation Act
before they could use their sick leave or vacation time. Simply
allowing claimant to use her accrued benefits was not an
admission that she was totally disabled for purposes of a
workers' compensation award.
Additionally, acceptance of the Medical Certification
Statement did not constitute implicit acceptance of claimant's
total disability claim. The form, although it lists several
9
On brief, claimant also argues employer is estopped from
claiming April 3, 2001 as the beginning of the six month period
for cure because employer provided her with a full-time salary
during that period. As this argument is not part of the
Questions Presented that were designated for appeal, we will not
address this issue. See Rule 5A:20(c)-(e); Hillcrest Manor
Nursing Home, 35 Va. App. at 39 n.4, 542 S.E.2d at 789 n.4
(finding "an issue [was] not expressly stated among the
'questions presented,' . . . we, therefore, decline to consider
[it] on appeal").
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medical conditions, does not state claimant was totally
disabled. The form simply repeats her light duty conditions,
necessitated by her partial disability: she cannot lift heavy
objects or reach overhead. If acceptance of the form did
constitute implicit acceptance of a medical condition, it only
suggested employer knew claimant was still partially disabled.
We agree with the commission that acceptance of this form did
not "provide a basis for an award of temporary total
disability."
Conclusion
The commission did not consider the totality of the
evidence surrounding claimant's refusal of selective employment.
Therefore, we reverse and remand this case to the commission for
further proceedings consistent with the foregoing opinion.
Reversed and remanded.
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