City of Hampton v. Richard Woodrow Hancock

• Court: Court of Appeals of Virginia
• Decided: October 31, 1995
• Docket: 0627954
• Status: Unpublished

Opinion

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.

- 2 - 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

- 3 - 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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