Metro Bldg., etc. v. Robert C. Christianson

• Court: Court of Appeals of Virginia
• Decided: March 5, 1996
• Docket: 1946954
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judge Annunziata and Senior Judge Duff Argued at Alexandria, Virginia

METRO BUILDING SUPPLY, INC., ET AL.

v. Record No. 1946-95-4 MEMORANDUM OPINION * BY CHIEF JUDGE NORMAN K. MOON ROBERT CHARLES CHRISTIANSEN, JR. MARCH 5, 1996

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION Joseph C. Veith, III (Montedonico, Hamilton & Altman, P.C., on briefs), for appellants.

Craig A. Brown (Ashcraft & Gerel, on brief), for appellee.

Metro Building Supply, Inc. appeals the commission's ruling

that Robert C. Christiansen, Jr., cured his earlier refusal of

light duty employment through acceptance of a comparable job with

Professional Boiler Works. We affirm the commission's ruling.

The issue in this case is cure of an unjustified refusal of

selective employment. In Christiansen v. Metro Building Supply, Inc., 18 Va. App. 721, 447 S.E.2d 519 (1994), we held that

Christiansen could cure an unjustified refusal to accept

selective employment at Metro Building Supply if he found and

accepted a job comparable to the one he had refused. We also

found that as a matter of law, Christiansen had not cured his

unjustified refusal through acceptance of a job at Professional

Boiler Works. This ruling was based on the apparently * Pursuant to Code § 17-116.010 this opinion is not designated for publication. substantial discrepancy between the salary at the light duty job

that Christiansen refused and his earnings at Professional Boiler

Works.

On rehearing, we determined that our assumptions concerning

the earnings at the two jobs were inaccurate, and that the

earnings were issues of fact that should be determined by the

commission. We therefore remanded the case to the commission for

findings of fact and conclusions of law as to whether under

Virginia Wayside Furniture, Inc. v. Burnette, 17 Va. App. 74, 435

S.E.2d 156 (1993), Christiansen had cured his prior justified

refusal of selective employment. Christiansen v. Metro Building

Supply, 19 Va. App. 513, 453 S.E.2d 302 (1995).

On remand, the commission did not take new evidence, instead

deciding the issue on the record before it. In the opinion on

reconsideration, this Court stated that it could not decide the

issue as a matter of law "on this record". Based on this

statement, Metro Building Supply argues that the commission erred

in not supplementing the record. However, the Court did not

require the commission to take more evidence. The Court

determined that it could not, on review, make the factual

findings necessary to decide the issue, and remanded the case so

the commission could do so. The commission has complied with the

Court's mandate.

Whether an employee has cured an unjustified refusal of

selective employment by securing a comparable job elsewhere is

determined by an objective standard of reasonableness and depends - 2 - on the particular circumstances of each situation. Virginia

Wayside Furniture, 17 Va. App. at 79; 435 S.E.2d at 160. On

review, we view the evidence on this question in the light most

favorable to Christiansen, the prevailing party below. National

Linen Service v. McGuinn, 8 Va. App. 267, 270, 380 S.E.2d 31, 33

(1989). Where, as here, there is no conflict in the evidence,

the question of sufficiency of the evidence is one of law. Id.

The commission determined that Christiansen had earned $380

per week in the light duty job at Metro Building Supply. Metro

Building Supply does not dispute this finding. It also found

that Christiansen's new light duty job would pay an average wage

of $340 to $380 per week. The commission went on to state that

when the hearing was held, Christiansen's time at the new job had

been too brief to establish an average weekly wage. Nonetheless,

in the commission's view the earnings in this job were close

enough to that of the job he had abandoned to establish a cure of

the prior unjustified refusal. The commission's findings were based on pay stub information

and testimony concerning Christiansen's earnings for his first

two weeks on the job with Professional Boiler Works. This

evidence showed a guaranteed wage of $340 per week, i.e., 40

hours per week at $8.50 per hour, with the possibility of "an

hour or two" of overtime. In his first week on the job,

Christiansen earned $352.75, including overtime. These figures,

which the parties do not dispute, establish the general range of

earnings in the new job. They do not, however, support the - 3 - commission's finding that the upper bound of that range was $380

per week. Allowing for the maximum overtime supported by the

evidence, the most Christiansen could make per week is $365.50.

Thus, undisputed evidence shows that Christiansen's current

job has earnings that are between 10.5 % and 4% less than the job

he unjustifiably refused. Viewing the evidence in the light most

favorable to the claimant, we hold that credible evidence

supported the commission's finding that Christiansen has cured

his earlier unjustified refusal of selective employment. The

wages of the two jobs need not be identical, but merely

comparable. Virginia Wayside Furniture, 17 Va. App. at 79-80,

435 S.E.2d at 160. Therefore, the commission did not err in

ruling that the claimant's job at Professional Boiler Works meets

this standard.

For these reasons, the decision of the commission is

affirmed.

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