William R. Perrigan v. Clinchfield Coal Company ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Senior Judge Hodges
Argued at Norfolk, Virginia
WILLIAM R. PERRIGAN
MEMORANDUM OPINION * BY
v. Record No. 2481-96-3 JUDGE WILLIAM H. HODGES
JUNE 24, 1997
CLINCHFIELD COAL COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Susan D. Oglebay for appellant.
Michael F. Blair (Ramesh Murthy; Penn,
Stuart, Eskridge & Jones, on brief), for
appellee.
William Perrigan (claimant) appeals from a decision of the
Virginia Workers' Compensation Commission (commission) holding
that he unjustifiably refused an offer of selective employment
and denying his claim for compensation effective November 17,
1995. Claimant contends that the commission erred when it found
Clinchfield Coal Company (employer) met its burden of proving
that it made a bona fide offer of employment. Claimant further
asserts that, even if the offer was bona fide, he justifiably
refused it.
Employer raises the additional question whether the
commission erred when it found that claimant had no obligation to
market his residual capacity where employer stipulated that
claimant was temporarily totally disabled from August 24 through
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
November 16, 1995. For the following reasons, we affirm the
commission in part and reverse it in part.
Background
On appeal, we review the evidence in the light most
favorable to the party prevailing below. See R.G. Moore Bldg.
Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
(1990). "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). 1
Claimant sustained a compensable knee injury on January 7,
1987. 2 An initial award was entered on July 8, 1988, pursuant to
a memorandum of agreement. Claimant subsequently returned to
work, but benefits were reinstated through a supplemental
memorandum of agreement when he again became disabled.
1
Employer contends that claimant is precluded from
challenging the sufficiency of the evidence in this appeal, as he
indicated he was not challenging the sufficiency of the evidence
on his notice of appeal. As there is no evidence that employer
was prejudiced by this statement, we will address claimant's
sufficiency claim. See The Greif Companies v. Hensley, 22 Va.
App. 546, 552, 471 S.E.2d 803, 806 (1996); Johnson v. City of
Clifton Forge, 7 Va. App. 538, 541, 375 S.E.2d 540, 543 (1989),
rev'd en banc on other grounds, 9 Va. App. 376, 388 S.E.2d 654(1990).
2
The Employer's Initial Report of Injury and Memorandum of
Agreement both refer to the injury as being to the right knee.
Claimant had surgery on this knee in March 1989. The surgery
related to the most recent disability was on claimant's left
knee. Medical records indicate the left knee injury dates back
to 1982. The parties have not raised causation as an issue in
this appeal.
2
On September 9, 1994, employer filed an application seeking
suspension of benefits on the ground that claimant unjustifiably
refused an offer of selective employment. Claimant stipulated
that he no longer suffered from a work-related disability as of
September 9, 1994, and the commission entered an order
terminating benefits as of that date.
Claimant underwent surgery for replacement of his left knee
on August 24, 1995. On October 6, 1995, he filed a change in
condition application, seeking wage loss and medical benefits
commencing August 24, 1995.
On October 19, 1995, employer's nurse case manager sent
claimant's physician, Dr. James L. Gardner, a job description for
the position of security communicator and asked Dr. Gardner
whether claimant could perform the job. In a letter to the case
manager dated November 1, 1995, Dr. Gardner wrote that claimant
could perform all the requirements of this job "at most any time"
if he was "forced to do so." On November 16, 1995, after meeting
with claimant, Dr. Gardner wrote:
[t]he job description as described, in my
opinion, a live body can perform if they have
the capacity to answer a phone and talk. I
have advised [claimant] that I have to
approve this job description but I have
reservations about his having to drive
getting to and from work and whether this is
included as part of their work capabilities,
etc.
Employer offered claimant a position as a security
communicator on November 27, 1995. Claimant did not accept the
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offer and, on December 8, 1995, employer filed an application
seeking suspension of benefits based on claimant's refusal of the
position. Employer further contended that any disability was
unrelated to the January 7, 1987 injury.
In lieu of a hearing before the deputy commissioner, the
parties submitted documentary evidence and stipulated to certain
facts, including that claimant was temporarily totally disabled
from August 24 through November 16, 1995 and that he did not
accept employer's November 27, 1995 offer of employment.
Relying on Dr. Gardner's "reservations" about claimant's
ability to drive to and from work, the deputy commissioner held
that employer's offer of employment was not bona fide. The
deputy commissioner awarded benefits covering the period of
August 24 through November 16, 1995, but denied benefits
subsequent to November 16 on the ground that claimant was not
marketing his residual capacity.
Claimant appealed to the full commission, which reached the
same result but for different reasons. The commission concluded
that, because employer had stipulated to claimant's disability,
it was barred from asserting that claimant was not marketing his
residual capacity. The commission held, however, that claimant
had unjustifiably refused selective employment.
In finding employer's offer of employment bona fide, the
commission held that employer did not have the burden of proving
claimant could travel to and from work. Rather, it concluded
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claimant had the burden to prove such an incapacity in justifying
his refusal of the position. The commission then held that
claimant's refusal to accept the job on transportation grounds
was unjustified, reasoning that "there is nothing in the specific
restrictions imposed by the treating physician that would
preclude transportation, and it is unexplained how the claimant
could travel to and from his medical appointments, but could not
travel to and from the workplace."
I.
Under Code § 65.2-510, "[i]f 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 and Reliance Ins. v. Swift, 22 Va. App. 202, 206, 468
S.E.2d 682, 684 (1996) (citations omitted). For benefits to be
denied, "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. W.O. Grubb Steel
Erection Co., Inc., 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." American Furniture Co.
v. Doane, 230 Va. 39, 42, 334 S.E.2d 548, 550 (1985).
Claimant contends that the employer's burden of proving a
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bona fide offer of employment includes establishing that he was
physically capable of driving to and from work. We disagree.
An employer is not required to provide transportation to the
selective employment it procured for the claimant. See Johnson
v. City of Clifton Forge, 9 Va. App. 376, 379, 388 S.E.2d 654,
656 (1990). Likewise, an employer is generally not liable for
injuries an employee sustains while travelling to and from work.
See Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 355
S.E.2d 347 (1987).
The decision in Kendrick is particularly instructive.
There, we held the general rule was that "'an employee going to
or from the place of where his work is to be performed is not
engaged in performing any service growing out of and incidental
to his employment.'" Id. at 190, 355 S.E.2d at 347 (citation
omitted). The exceptions to this rule include (1) where the
means of transportation is provided by the employer, or employees
are compensated for the time spent by commuting; and (2) where
the employee is required to perform some work-related function or
duty while travelling to or from work. See id. at 191, 355
S.E.2d at 347-48. Logically, if neither of the above exceptions
applies to a particular position, then the employer would not
have to establish the claimant's physical ability to travel to
and from work to meet its burden of proving a bona fide offer of
selective employment.
There is no evidence that transportation to and from the job
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site was to be provided by employer, or that it was an integral
part of the job itself. We agree with the commission, therefore,
that employer was under no burden to prove that claimant was
physically capable of driving to and from work. Further,
credible medical evidence supports the commission's conclusion
that claimant was able to perform all the physical requirements
of this position.
II.
"When the employer establishes that selective employment was
offered to an employee that was within the employee's capacity to
work, the employee bears the burden of establishing justification
for refusing the offered employment." 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).
While Dr. Gardner expressed "reservations" about claimant's
ability to drive to and from work, claimant presented no evidence
that he was incapable of doing so, or that he had even tried to
do so. He provided no other explanation for refusing the
position offered him. We find that there is sufficient credible
evidence supporting the commission's finding that claimant was
not justified in refusing this selective employment. Therefore,
we affirm that part of the commission's decision.
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III.
Citing National Linen Service v. McGuinn, 5 Va. App. 265,
362 S.E.2d 187 (1987), the commission held that employer was
estopped from arguing that claimant had failed to market his
residual capacity subsequent to November 16, 1995. In McGuinn,
the employer voluntarily paid the claimant temporary total
disability benefits for thirteen months following an August 1983
industrial accident, but did not execute a memorandum of
agreement to the commission. See id. at 267, 362 S.E.2d at 188.
In January 1985, the claimant filed an application with the
commission seeking continued payment of benefits. The employer
defended on the ground that the claimant was not marketing his
residual work capacity. See id. at 267-68, 362 S.E.2d at 188.
The commission ruled in favor of the claimant, and we
affirmed, noting that the employer's failure to execute a
memorandum of agreement violated former Code § 65.1-93. 3 See id.
at 268, 362 S.E.2d at 188-89. "If the agreement had been filed,
McGuinn's entitlement to compensation would have been
established, as well as the compensability of his injury, thus
obviating the need for him to show that he made reasonable
efforts to market his remaining work capacity." Id. at 271, 362
S.E.2d at 190. Furthermore, had an agreement been executed, the
employer "would have been obligated to honor the award until it
3
Former Code §§ 65.1-43 and 65.1-93 were merged into current
Code § 65.2-701.
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established by a preponderance of the evidence a change in
condition . . . and had been authorized by the commission to
terminate payment of benefits to McGuinn." Id. at 270, 362
S.E.2d at 189. The employer's "failure to abide by [former] Code
§ 65.1-93 misled McGuinn to his detriment into believing that he
was entitled to total work incapacity payments during the period
of his disability." Id. at 271, 362 S.E.2d at 190 (emphasis
added).
McGuinn is inapposite to the present case. Here, employer
filed a memorandum of agreement and supplemental memorandum of
agreement with the commission following the initial injury.
Claimant's award was terminated as of September 9, 1994, and
employer made no voluntary payments to claimant thereafter.
Employer responded to claimant's October 6, 1995 application by
denying any current disability was related to the original,
compensable injury. Further, the stipulation of disability
concerned a change in condition, not the claimant's original
application.
McGuinn did not involve a stipulation, per se, but rather
the employer's implicit concession, through voluntary payment of
benefits, that the claimant was totally disabled as the result of
a compensable accident. See id. at 267, 362 S.E.2d at 188.
Here, the stipulations into which employer entered with claimant
were evidentiary in nature, designed to narrow the issues and
expedite the review of the application. "Cases before the
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[Workers' Compensation] Commission are frequently expedited or
disposed of by stipulations . . . ." Harris v. Diamond Constr.
Co., 184 Va. 711, 724, 36 S.E.2d 573, 579 (1946). "Such
stipulations save both time and expense for the litigants and are
to be encouraged and not condemned." Id. Employer's stipulation
in no way misled claimant, but rather benefited him by conceding
a fixed period of total disability.
Accordingly, we find that the commission erred in finding
that employer was barred from raising the defense that claimant
had failed to market his residual work capacity. Therefore, "to
establish entitlement, [the claimant has] the burden of proving
that he made a reasonable effort to procure suitable work but was
unable to market his remaining work capacity." Washington
Metropolitan Area Transit Authority v. Harrison, 228 Va. 598,
601, 324 S.E.2d 654, 656 (1985). When determining whether a
claimant has made a reasonable marketing effort,
the commission must consider several factors,
including (1) the nature and extent of the
employee's disability; (2) the employee's
training, age, experience and education; (3)
the nature and extent of the employee's job
search; (4) the employee's intent in
conducting the job search; (5) the
availability of jobs in the area suitable for
the employee, considering his or her
disability; and (6) any other matter
affecting the employee's capacity to find
suitable employment.
The Greif Companies v. Sipe, 16 Va. App. 709, 715-16, 434 S.E.2d
314, 318 (1993).
The medical evidence established that claimant is capable of
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performing sedentary employment. Claimant has presented no
evidence, however, of any steps he has taken since November 16,
1995 to market his residual capacity. Therefore, having found
that employer is not barred from raising this defense, we find as
a matter of law that claimant has not marketed his residual work
capacity since November 16, 1995.
Affirmed in part,
reversed in part.
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