City of Buena Vista Public Worksv Southers

• Court: Court of Appeals of Virginia
• Decided: September 14, 1999
• Docket: 1064993
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Frank

CITY OF BUENA VISTA PUBLIC WORKS AND VIRGINIA MUNICIPAL GROUP SELF-INSURANCE ASSOCIATION MEMORANDUM OPINION* v. Record No. 1064-99-3 PER CURIAM SEPTEMBER 14, 1999 MARSHALL V. SOUTHERS

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(John P. Grove; Charles V. Mehler, III; Woods, Rogers & Hazlegrove, P.L.C., on brief), for appellants.

(H. David Natkin, on brief), for appellee.

City of Buena Vista Public Works and its insurer

(hereinafter referred to as "employer") contend that the

Workers' Compensation Commission (commission) erred in finding

that Marshall V. Southers (claimant) did not unjustifiably

refuse selective employment. 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).

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Factual findings made by the commission will be upheld on appeal

if supported by credible evidence. See James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

Claimant, a forty-eight-year-old man, worked for employer

for twenty-six years before his injury and has a seventh grade

education. At the time of his injury, he was a supervisor in

the public works department. He supervised storm drainage work,

which included concrete finishing.

Employer's sole offer of post-injury work to claimant was

"homebound" part-time employment with Work Enterprises in April

1997. Work Enterprises would pay claimant $6.00 per hour for

twenty-one hours of work per week. The job involved cutting

six-inch wide netting with scissors into seven inch sections,

counting between 100 and 250 such sections, and packaging the

sections into a plastic bag. In addition, if ribbon cutting was

needed, the claimant would cut fourteen-inch strips of ribbon

from a 500-yard spool.

An October 10, 1996 Functional Capacity Evaluation

indicated that claimant was "understandably cautious and has

quite a pattern of protection to overcome, which may not be

easily changed," based on the duration of claimant's injuries

and his re-injuries. On March 24, 1997, Dr. J. Gordon Burch,

claimant's treating neurologist, approved four job descriptions

for the claimant with Work Enterprises. In his September 1997

deposition, Dr. Burch explained that claimant could perform work

- 2 - where he had unlimited personal discretion as to when he was

sitting, standing and walking. However, Dr. Burch was concerned

about any job for claimant that would entail prolonged sitting.

Dr. Robert Widmeyer testified in his deposition that he did not

believe claimant could successfully perform the Work Enterprises

jobs, which he termed as "demeaning," but that he was not

physically prevented from trying them.

Claimant testified that he believed he was unable to

perform the jobs because they required sitting and working with

his hands. He stated that he was unable to sit for more than

forty-five minutes without having to lie down for two hours

before he could sit up again. He was required to lie down most

of the time.

In denying employer's application to terminate claimant's

benefits, the commission found as follows:

It is not clear what the specific qualifications for the Work Enterprises jobs are. Dr. Widmeyer, who reviewed the job descriptions, stated in his deposition that "assuming they don't require you to sit in a fixed position, obviously, there's nothing in the job itself that would bother anybody." It is also not clear what skills an employee is expected to develop in the course of employment. Mr. [Richard] Fender testified that the claimant would be "trained"; the job in which he intended to place the claimant, however, only involved cutting lightweight netting in seven-inch sections and placing them in a plastic bag. There is also no evidence of the economic impact of the jobs, if any. We may infer that the seed packages are utilized in wedding ceremonies; there is no evidence,

- 3 - however, that this is a genuine business concern.

. . . We believe that the jobs offered to the claimant were justifiably refused, given his lengthy, valuable employment history, his considerable and chronic symptoms, and his need, as reported in his [Functional Capacity Evaluation], of a careful and calculated approach to returning him to gainful employment.

"'If an injured employee refuses employment secured for him

suitable to his capacity, he shall only be entitled to the

benefits provided for in § 65.2-603 during the continuance of

such refusal, unless in the opinion of the Commission such

refusal was justified.'" DePaul Med. Ctr. v. Brickhouse, 18 Va.

App. 506, 508, 445 S.E.2d 494, 495 (1994) (quoting Code

§ 65.2-510). Code § 65.2-510 vests broad discretion in the

commission to determine whether under the circumstances an

employee is justified in refusing selective employment. See

Brickhouse, 18 Va. App. at 508, 445 S.E.2d at 495.

Assuming without deciding that employer offered employment

to claimant that was within his residual capacity, we find that

credible evidence supports the commission's finding that

claimant was justified in refusing such employment. The

testimony of claimant, as well as the medical records and

physicians' deposition testimony, amply supports the

commission's finding that claimant's placement in the Work

Enterprises jobs would serve no legitimate rehabilitative

- 4 - purpose and was not appropriate vocational rehabilitation

pursuant to Code § 65.2-603(A)(3).

For these reasons, we affirm the commission's decision.

Affirmed.

- 5 -