Cynthia Krohn v. Mary Immaculate Hospital

• Court: Court of Appeals of Virginia
• Decided: February 29, 2000
• Docket: 2517991
• Status: Unpublished

Opinion

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).

- 2 - 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

- 3 - 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.

- 4 -