Cynthia Krohn v. Mary Immaculate Hospital ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
CYNTHIA KROHN
MEMORANDUM OPINION*
v. Record No. 2517-99-1 PER CURIAM
FEBRUARY 29, 2000
MARY IMMACULATE HOSPITAL AND
THE VIRGINIA INSURANCE RECIPROCAL
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert J. Macbeth, Jr.; Rutter, Walsh,
Mills & Rutter, L.L.P., on brief), for
appellant.
(Andrea L. Bailey; Crews & Hancock, P.L.C.,
on brief), for appellees.
Cynthia Krohn (claimant) contends that the Workers'
Compensation Commission (commission) erred in finding that she
unjustifiably refused an offer of selective employment made to
her by Mary Immaculate Hospital and its insurer (hereinafter
referred to as "employer") as provided in Code § 65.2-510. 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. See Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "To
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
support a finding of refusal of selective employment 'the record
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 the case of a refusal of selective employment, the
employer has the burden to show that the position offered is
within the employee's residual capacity. If the employer
sustains this burden, the burden shifts to the employee to show
that refusal of employment was justified. See American
Furniture Co. v. Doane, 230 Va. 39, 42, 334 S.E.2d 548, 550
(1985); Food Lion, Inc. v. Lee, 16 Va. App. 616, 619, 431 S.E.2d
342, 344 (1993). "To support a finding of justification to
refuse suitable selective employment, 'the reasons advanced must
be such that a reasonable person desirous of employment would
have refused the offered work.'" Id. (citation omitted).
Unless we can say as a matter of law that claimant's evidence
sustained her burden of proof, the commission's findings are
binding and conclusive upon us. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
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In affirming the deputy commissioner's decision that
claimant unjustifiably refused selective employment and
suspending claimant's compensation benefits effective October
21, 1998, the full commission found as follows:
Dr. [Mark B.] Kerner[, claimant's treating
physician,] approved the job description
provided by the vocational counselor. In
his October 15, 1998, letter he reiterated
his opinion that the claimant could perform
the job described. Dr. Kerner did express
reservations about the commute time and
noted that the "amount of commute being
required for this patient may be excessive."
The claimant, however, has not shown that
she is incapable of making the commute or
that she has even tried to make the commute.
Nor has she provided any evidence that she
cannot drive. Her medical restrictions do
not include a restriction on driving.
Dr. Kerner's medical records and his approval of the
pre-admissions registered nurse job offered by employer to
claimant support the commission's finding that employer proved
that the selective employment it offered to claimant was
suitable to her residual capacity. No evidence showed that
claimant's ability to drive was restricted by Dr. Kerner when
employer offered claimant selective employment. While Dr.
Kerner noted claimant's concerns about the commute time and Dr.
Kerner expressed his own concerns about claimant's ability to
drive to and from work, he did not withdraw his previous
approval of the job description or change claimant's medical
restriction in any manner. In addition, claimant presented no
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evidence that she was unable to drive to the location of the
selective employment or that she had even attempted to do so. 1
Finally, we find no merit in claimant's argument that she
was entitled to refuse employer's offer of selective employment
because she had less than two weeks in which to give notice to
her current employer. The first time claimant raised this
argument as justification for her refusal was in her written
statement on review to the full commission. At the hearing
before the deputy commissioner, claimant gave no explanation
whatsoever as to why she refused employer's offer. In addition,
there is no evidence in the record that claimant ever contacted
employer after she received its offer of selective employment to
ask for a different start date.
Based upon this record, we cannot find as a matter of law
that claimant proved she was justified in refusing the selective
employment offered to her by employer. Accordingly, we affirm
the commission's decision.
Affirmed.
1
Claimant's pre-injury wage was $628.99 per week. Her wage
as of October 1998 before employer offered her selective
employment was $263.28. The full-time pre-admissions registered
nurse job offered by employer to claimant paid wages at least
equal to her pre-injury wage.
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