COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Clements
Argued at Alexandria, Virginia
HILLCREST MANOR NURSING HOME AND
ZENITH INSURANCE COMPANY
OPINION BY
v. Record No. 1027-00-4 JUDGE RICHARD S. BRAY
MARCH 6, 2001
ROSA MARIE UNDERWOOD
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Ralph L. Whitt, Jr. (John R. Cornett, Jr.;
Michael P. Del Bueno; Williams, Lynch &
Whitt, on briefs), for appellants.
Nate L. Adams, III (Adams & Kellas, P.C., on
brief), for appellee.
Hillcrest Manor Nursing Home (Hillcrest) and its insurer,
Zenith Insurance Company (collectively employer), appeal an
award of disability benefits by the Virginia Workers'
Compensation Commission (commission) to Rosa Marie Underwood
(claimant). Employer complains the commission erroneously found
claimant partially cured an unjustified refusal of selective
employment. In a cross-appeal, claimant contends the commission
incorrectly concluded employer made a valid offer of such
employment, which she unreasonably refused and employer did not
withdraw. Finding no error, we affirm the decision.
I.
In accordance with well established principles, we consider
the evidence in the light most favorable to the prevailing party
below. States Roofing Corp. v. Bush, 15 Va. App. 613, 616, 426
S.E.2d 124, 126 (1993).
"Factual findings of the commission that are
supported by credible evidence are
conclusive and binding upon this Court on
appeal." Southern Iron Works, Inc. v.
Wallace, 16 Va. App. 131, 134, 428 S.E.2d
32, 34 (1993). "If there is evidence, or
reasonable inferences can be drawn from the
evidence, to support the Commission's
findings, they will not be disturbed on
review, even though there is evidence in the
record to support a contrary finding."
Morris v. Badger Powhatan/Figgie Int'l,
Inc., 3 Va. App. 276, 279, 348 S.E.2d 876,
877 (1986).
Hoy Construction, Inc. v. Flenner, 32 Va. App. 357, 361, 528
S.E.2d 148, 150 (2000).
While employed by Hillcrest as a "certified nursing
assistant," claimant suffered a compensable injury on August 30,
1997. At the time of the incident, claimant was working for
employer "about thirty-two hours" weekly, lifting, dressing,
bathing, feeding and otherwise caring for patients at Hillcrest,
while similarly employed, "full-time," elsewhere. Dr.
William J. Bender treated claimant the day of the injury and
then released her for return to work, subject to restrictions on
"Lifting" and "Bending, Squatting/Twisting." During the ensuing
months, claimant was treated by several physicians in practice
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with Dr. Bender and each prescribed limitations upon her
employment and other activities. As a result of such
restrictions, claimant's full-time employment was "no longer
available" and Hillcrest offered, and she accepted, part-time,
light duty work at substantially reduced hours.
On November 21, 1997, Doris M. Traylor, administrator of
Hillcrest, offered claimant a "full-time" light duty position at
Hillcrest, "meaning [a return to] thirty-two hours per week" at
Hillcrest, performing "the exact same job description [claimant]
was [then] working under" part-time. However, citing "personal
reasons," claimant declined, 1 explaining at the hearing that the
expanded employment would have required her to "be out after
dark" and interfered with medical care 2 and the transport of her
"boyfriend back and forth to work." Claimant further testified
that full-time employment exceeded her limitations, 3 a
circumstance admittedly unsupported by "healthcare
professional[s]" and not a consideration in her decision.
Thereafter, claimant continued to regularly work part-time,
1
In a subsequent note to employer, claimant offered to
accept such employment on a schedule compatible with her
"personal" life.
2
Certain therapy cited by claimant had ended at the time of
the offer, and no effort was made to reschedule other care.
3
Claimant acknowledged an "aware[ness]" of the attendant
duties, and the job description was later approved by her
treating physician.
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light duty at Hillcrest from 11:00 a.m. – 7:00 p.m. two days
each week, despite her stated preference for the
7:00 a.m. - 3:00 p.m. shift.
By letter dated December 20, 1997, claimant again protested
any attempt by Hillcrest to assign a "full schedule . . .
without [her] permission." She acknowledged "thought[s] about
working more time" but had "reasons why" deciding against it.
Nevertheless, claimant volunteered to "work some Monday [sic]"
and promised to "let [Traylor] know if [she] ever want[ed] to do
extra time." Claimant concluded the note declaring, "I want my
schedule back," apparently referencing the preferred shift.
Claimant confirmed the contents of the letter during a meeting
with Ms. Traylor on December 26, 1997, and Hillcrest restored
the part-time schedule pursuant to her request, without further
mention of the full-time, light duty employment offer.
Claimant filed for benefits with the commission on May 14,
1998, and Deputy Commissioner Culbreth conducted a hearing on
October 20, 1998. In an amended opinion, dated June 4, 1999,
the deputy awarded claimant temporary partial disability
benefits for the period September 1, 1997 through November 21,
1997. However, the deputy suspended benefits beginning November
21, 1997, ruling claimant "cannot be awarded benefits based on
her choice, for non-medical reasons, to reject hours which would
be within her restrictions, and would put her at or above her
pre-injury average weekly wage."
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On appeal by claimant, the full commission affirmed the
deputy's finding of unjustified refusal of selective employment
on November 21, 1997. However, the commission reversed the
suspension of benefits, reasoning that claimant, by accepting
light duty, part-time employment with Hillcrest, partially cured
such refusal, entitling her to "temporary partial disability
benefits" based on the difference between her pre-injury average
weekly wage and the wage she would have earned had she accepted
the full-time hours. Both employer and claimant appeal.
II.
"If an injured employee unjustifiably refuses selective
employment offered by the employer, he or she is 'no longer
entitled to receive disability compensation during the
continuance of the refusal.'" ARA Services v. Swift, 22 Va.
App. 202, 206, 468 S.E.2d 682, 684 (1996) (citing Virginia
Wayside Furn., Inc. v. Burnette, 17 Va. App. 74, 78, 435 S.E.2d
156, 159 (1993); Code § 65.2-510(A)). However, "once an
employee has cured an unjustified refusal of selective
employment, he or she is entitled to reinstatement of benefits."
Food Lion, Inc. v. Newsome, 30 Va. App. 21, 25, 515 S.E.2d 317,
319 (1999); see Code § 65.2-510(B). If the injured employee
cures "by accepting employment . . . at a wage less than that
originally offered, the employer shall pay or cause to be paid"
weekly compensation to the partially incapacitated employee
"equal to 66 2/3 percent of the difference between his average
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weekly wages before . . . injury and the average weekly wage the
employee would have earned by accepting the original proffered
light duty employment." Code § 65.2-510(B).
"Code § 65.2-510 was enacted . . . to encourage employers
to procure employment suitable to partially incapacitated
employees." Food Lion, Inc. v. Lee, 16 Va. App. 616, 619, 431
S.E.2d 342, 344 (1993). An employer seeking to terminate
compensation benefits pursuant to the statute 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."
Ellerson v. W. O. Grubb Steel Erection Co., 1 Va. App. 97, 98,
335 S.E.2d 379, 380 (1985). To constitute a bona fide offer,
the selective employment contemplated by Code § 65.2-510 must be
upon terms and conditions sufficiently specific to permit
informed consideration by an employee, id. at 101-02, 335 S.E.2d
at 382, and comprised of duties consistent with employee's
remaining work capacity. American Furniture Co. v. Doane, 230
Va. 39, 42, 334 S.E.2d 548, 550 (1985).
Upon a showing by employer of a bona fide offer of
selective employment, "the employee bears the burden of
establishing justification for refusing such employment. Food
Lion, Inc., 16 Va. App. at 619, 431 S.E.2d at 344. "To support
a finding of justification to refuse suitable selective
employment, 'the reasons advanced must be such that a reasonable
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person desirous of employment would have refused the offered
work.'" Id. (citation omitted).
Here, claimant first complains that employer's evidence did
not prove a bona fide offer. Her argument, however, is belied
by the record. At the time the offer was tendered by employer,
claimant was performing part-time duties identical to those
attendant to the proposed full-time employment. She
acknowledged an understanding that the offer involved only an
increase in hours worked weekly, not a change in tasks, and her
"personal" objections to the terms related solely to such
distinction. Claimant, therefore, was sufficiently aware of the
job description to properly consider the Hillcrest offer.
Similarly, with respect to claimant's capacity to perform
the related duties, the record does not support her contention
that the offer violated restrictions imposed either by
physicians or any functional limitations evinced during her
part-time employment. To the contrary, claimant satisfactorily
performed the tasks of part-time employment and, in response to
employer's offer, volunteered for more frequent work shifts,
albeit on a schedule acceptable to her. Under such
circumstances, "where the attending physician has specified the
limitations . . . and it is obvious that the proffered job fits
these limitations," submission of the "job description to the
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physician for what would be merely 'rubber stamp action'" is
unnecessary. Talley v. Goodwin Bros. Lumber Co., 224 Va. 48,
52, 294 S.E.2d 818, 820-21 (1982) (citation omitted).
Accordingly, the record provides ample support for the
commission's finding that employer made a bona fide offer of
selective employment to claimant.
Claimant next maintains she "never absolutely rejected an
offer of selective employment where she failed to work at all"
because she willingly worked part-time. Clearly, however,
unjustified refusal by claimant of the "employment procured for
[her] suitable to [her] capacity," the full-time employment in
issue, triggered the loss of benefits contemplated by Code
§ 65.2-510. Code § 65.2-510(A). Claimant's continued part-time
employment cannot be deemed acceptance of the full-time offer.
The commission, therefore, correctly concluded she
"unjustifiably refused light duty employment on November 21,
1997."
Lastly, assuming an unjustified refusal of employer's bona
fide offer, claimant, nevertheless, insists upon entitlement to
full temporary benefits, commencing December 20, 1997,
contending employer subsequently withdrew the offer of full-time
employment by "schedul[ing] her the way [she] wanted to work."
However, employer's accession to claimant's request for a return
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to shifts preferable to her clearly does not suggest a
withdrawal of the offer. 4
Employer complains on appeal that the commission
erroneously determined claimant partially cured her initial
refusal of full-time selective employment by simply continuing
the part-time, light duty work that predated the offer, without
further "action, affirmative or otherwise." In resolving this
issue and awarding claimant benefits pursuant to Code
§ 65.2-510(B), the commission reasoned that, "[a]lthough it was
the claimant's decision to work the reduced hours, the effect
was the same as if she, in an attempt to cure, had obtained
alternate employment at a reduced wage." We agree with the
commission.
If claimant had refused the offer of full-time employment,
resigned and thereafter immediately accepted part-time, light
duty work with employer or elsewhere, at reduced wages, she
would have partially cured such refusal. Likewise, continued
part-time, selective employment, with Hillcrest, following the
full-time offer, constituted a partial cure of her prior
unjustified refusal of such employment within the intendment of
Code § 65.2-510(B). A contrary result would deny benefits under
circumstances evincing little substantive difference in conduct,
4
Claimant also contends the commission incorrectly
calculated benefits, an issue not expressly stated among the
"question[s] presented," which we, therefore, decline to
consider on appeal. See Rule 5A:21.
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thereby thwarting the purposes of the Workers' Compensation Act,
"highly remedial" legislation, "designed to protect employees,"
which "'should be liberally construed in favor of the
[employee].'" Brown v. United Airlines, 34 Va. App. 273, 276,
540 S.E.2d 521, ___ (2001) (citations omitted). Accordingly,
the commission correctly determined that "claimant would still
be entitled to temporary benefits based on the difference
between her preinjury average weekly wage and the wage she would
have earned had she accepted full-time hours."
We, therefore, affirm the decision of the commission.
Affirmed.
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