Clements v. Riverside Walter Reed Hospital

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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