Clarence W. Truax,Jr. v. William A. Hazel, Inc.,etc

• Court: Court of Appeals of Virginia
• Decided: July 18, 2000
• Docket: 0137004
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Frank

CLARENCE W. TRUAX, JR. MEMORANDUM OPINION* v. Record No. 0137-00-4 PER CURIAM JULY 18, 2000 WILLIAM A. HAZEL, INC. AND ROYAL INSURANCE COMPANY OF AMERICA

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Clarence W. Truax, Jr., pro se, on brief).

(Cathleen P. Welsh; Wharton, Aldhizer & Weaver, P.L.C., on brief), for appellees.

Clarence W. Truax, Jr. (claimant) contends that the

Workers' Compensation Commission (commission) erred in finding

that he (1) unjustifiably refused selective employment offered

to him by William A. Hazel, Inc. (employer) on September 1,

1998; (2) unjustifiably refused necessary medical treatment by

Dr. Roger V. Gisolfi on September 29, 1998; and (3) was not

entitled to a change in treating physicians. 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.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. I.

"To 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)). Factual findings made by

the commission will be upheld on appeal if supported by credible

evidence. See id. at 515, 382 S.E.2d at 488.

"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). Unless we can say as a

matter of law that claimant's evidence sustained his 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).

- 2 - 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).

Here, it was undisputed that claimant's treating physician, Dr.

Richard Gisolfi, released claimant to light-duty work effective

August 24, 1998, with no restrictions upon his ability to drive.

In addition, claimant admitted that employer contacted him and

offered him selective employment in its Chantilly, Virginia

office to begin on September 1, 1998. Claimant failed to report

for the job. Before the commission, claimant did not dispute

that the selective employment was within his restrictions.

However, he contended that he was justified in refusing the job

because he could not drive to work due to his pain. However,

the evidence proved that Dr. Gisolfi made it clear at the time

of claimant's refusal that claimant was physically capable of

driving to work and that his medication would not prohibit him

from driving.

The medical records and Dr. Gisolfi's opinions provide

credible evidence to support the commission's finding that the

selective employment offered to claimant was within his physical

capacity. Moreover, based upon this record, we cannot find as a

matter of law that claimant's evidence proved that he was

justified in refusing such employment.

- 3 - II.

The evidence proved that claimant knew he had an

appointment with Dr. Gisolfi on September 29, 1998, which he

failed to attend. Claimant's reason for failing to attend the

appointment, that he could not drive, was not supported by his

treating physician, who opined that there was no medical reason

why claimant could not drive to the appointment. Moreover,

although employer indicated that it would not provide

transportation for claimant to the appointment, there was no

evidence that employer refused to pay claimant for his

transportation costs to attend the appointment, its only

obligation under the Workers' Compensation Act and the

circumstances of this case. The evidence showed that claimant

never inquired of employer whether it would reimburse his

transportation costs.

Based upon this record, we cannot find as a matter of law

that claimant proved he was justified in failing to attend the

appointment with Dr. Gisolfi.

III.

The deputy commissioner denied claimant's request for a

change in treating physicians. Claimant did not argue on review

before the full commission that the deputy commissioner erred in

that determination. Decisions of a deputy commissioner that are

not reviewed by the full commission cannot be brought before

this Court. See Southwest Architectural Prods., Inc. v. Smith,

- 4 - 4 Va. App. 474, 478, 358 S.E.2d 745, 747 (1987); Rule 5A:18.

Accordingly, we cannot address this issue on appeal.

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

Affirmed.

- 5 -