City of Hampton v. Richard Woodrow Hancock ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
CITY OF HAMPTON
v. Record No. 0627-95-4 MEMORANDUM OPINION * BY
JUDGE ROSEMARIE ANNUNZIATA
RICHARD WOODROW HANCOCK OCTOBER 31, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Joyce A. Melvin-Jones, Deputy City Attorney
(Office of the City Attorney, on brief), for
appellant.
Michael A. Kernbach (Jack T. Burgess &
Associates, P.C., on brief), for appellee.
The employer, City of Hampton ("City"), appeals the Virginia
Workers' Compensation Commission's decision to award the
claimant, Richard Woodrow Hancock ("Hancock"), compensation for
an occupational disease. The City alleges (1) that Hancock
failed to market his residual work capacity by filing for
retirement; and (2) that any award Hancock receives should be
offset by his current wages. For the reasons that follow, we
reject the City's contentions and affirm the commission's award.
On September 9, 1993, Hancock's physician advised him to
stop working as a firefighter, having concluded that his job was
a "contributing factor" to his hypertension. The City does not
dispute that Hancock is entitled to the presumption provided by
Code § 65.2-402 that a firefighter's hypertension is a
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
compensable occupational disease suffered in the line of duty.
In its brief, the City argued that the evidence overcame the
statutory presumption. However, at oral argument, the City
conceded that Hancock's employment caused his condition.
After his diagnosis, Hancock left work on approved leave.
Hancock then applied for disability retirement in September 1993
and filed a workers' compensation claim later that fall. In
November 1993, Hancock moved to Ocean City, Maryland and began
working with a heating and air conditioning company. Hancock
switched to leave without pay status when his sick leave ran out
in February 1994. As of the hearing date, Hancock's retirement
application had not been approved, and the City had not notified
Hancock that his employment had terminated. Hancock testified
that he remained a City employee on leave without pay.
Citing Code § 65.2-510, the City argues that Hancock is not
entitled to continuing wage benefits because, by filing for
retirement, he removed himself from the labor market. We
disagree.
Code § 65.2-510 terminates continued benefits paid to an
employee who refuses employment procured for him suitable to his
capacity. E.g. Thompson v. Hampton Institute, 3 Va. App. 668,
670, 353 S.E.2d 316, 316-17 (1987) (addressing former Code
§ 65.1-63 recodified as § 65.2-510). In order to continue
receiving workers' compensation benefits, a claimant must make a
reasonable effort to market his remaining capacity to work.
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Herbert Brothers v. Jenkins, 14 Va. App. 715, 717, 419 S.E.2d
283, 284 (1992); National Linen Service v. McGuinn, 8 Va. App.
267, 269, 380 S.E.2d 31, 33 (1989). In determining a claimant's
"reasonable efforts," the commission may consider his voluntary
removal from the job market. McGuinn, 8 Va. App. at 272 n.5, 380
S.E.2d at 34 n.5.
However, in order to support a finding under this section,
"the record must disclose (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. Grubb Steel Erection Co., 1 Va.
App. 97, 98, 335 S.E.2d 379, 380 (1985) (decided under former
§ 65.1-63). The employer bears the burden of showing that it
procured for the employee a job offer within the employee's
residual capacity. Ellerson, 1 Va. App. at 102, 335 S.E.2d at
382.
We find that the evidence in this case does not meet these
requirements. It is undisputed that the City never offered
Hancock a job within his remaining work capacity. The City
argues that it was unable to offer Hancock a job because he had
filed for retirement, thereby removing himself from the job
market. However, at the date of the hearing, Hancock's
application for retirement had not been approved. Indeed,
approval of Hancock's application for disability retirement was
never certain. Hancock's acts did not foreclose the City from
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offering him alternative work.
Finally, the City asks that the Court off-set the claimant's
award by his current wages. However, the City failed to show how
the award was computed and how the award should be off-set.
"Since this argument was not fully developed in the appellant's
brief, [the Court] need not address this question." Buchanan v.
Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 238 (1992) (citing
Rogers v. Rogers, 170 Va. 417, 421, 196 S.E. 586, 588 (1938)).
"Statements unsupported by argument, authority, or citations to
the record do not merit appellate consideration." Id.
Accordingly, for the reasons stated, the award of the full
commission is affirmed.
Affirmed.
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