Rock City Mechanical, Inc v. Thomas Lee Barry

• Court: Court of Appeals of Virginia
• Decided: December 19, 2000
• Docket: 2086003
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Frank and Clements

ROCK CITY MECHANICAL, INC. AND AMERICAN ALLIANCE INSURANCE COMPANY MEMORANDUM OPINION* v. Record No. 2086-00-3 PER CURIAM DECEMBER 19, 2000 THOMAS LEE BARRY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Daniel E. Lynch; John T. Cornett, Jr.; Williams & Lynch, on brief), for appellants.

Daniel R. Bieger; Copeland, Molinary & Bieger, P.C., on brief), for appellee.

Rock City Mechanical, Inc. and its insurer (hereinafter

referred to as "employer") contend that the Workers'

Compensation Commission erred in finding that Thomas Lee Barry

was justified in refusing selective employment offered to him by

employer. 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. 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, this opinion is not designated for publication. Factual findings made by the commission will be upheld on appeal

if supported by credible evidence. James v. Capitol Steel

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

So viewed, the evidence proved that on May 27, 1999,

claimant sustained a compensable injury to his left knee. The

commission entered an award on November 2, 1999, for temporary

total disability benefits beginning May 28, 1999.

On June 15, 1999, Dr. Fred Knickerbocker, claimant's

treating physician, performed arthroscopic surgery on claimant's

left knee to repair a torn medial meniscus. On October 13,

1999, Dr. Knickerbocker released claimant to return to work with

restrictions against repetitive squatting, kneeling, or

climbing.

On November 10, 1999, employer offered claimant light-duty

work within his residual capacity, working in a metal shop at a

wage greater than his pre-injury wage. Claimant accepted this

employment, and continued to work in this job until January 12,

2000.

On that date, employer underwent a workforce reduction and

offered claimant a job in "the field," which would require that

he walk approximately three-fourths of a mile uphill from his

assigned parking space and three-fourths of a mile back downhill

to his parking space, while carrying his toolbox. The road he

would have to walk on was muddy, hilly, and rocky. Claimant's

toolbox weighs approximately fifty pounds. Claimant told

- 2 - employer that he did not believe he was medically permitted to

walk that distance carrying his tools, and he did not believe

that he could do it. As a result, employer laid off claimant.

Claimant testified regarding his efforts after that date to

market his residual capacity.

Employer's representative testified that claimant could

have stored his tools on the job site in a "gang box." Claimant

testified that his tools were valued at between $2,000 and

$4,000 and that some of them were irreplaceable. He stated that

there had been thefts from the "gang boxes" and that employer

was unwilling to replace the tools. For this reason, he did not

want to store his tools in the "gang box." Employer did not

rebut claimant's testimony.

On January 17, 2000, Dr. Knickerbocker examined claimant

and opined that he could not walk more than fifty feet while

carrying his toolbox and that he was not allowed to squat,

kneel, or climb on a repetitive basis. In a January 20, 2000

letter to claimant's counsel, Dr. Knickerbocker opined that the

claimant could not walk "3/4 mile up a hill carrying a heavy

toolbox without aggravating his knee." Claimant's restrictions

were made permanent on February 14, 2000.

"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

- 3 - the employee to accept the job.'" Id. at 515, 382 S.E.2d at 489

(quoting Ellerson v. W.O. Grubb Steel Erection Co., 1 Va. App.

97, 98, 335 S.E.2d 379, 380 (1985)).

"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).

In ruling that claimant was justified in refusing

employer's offer of selective employment, the commission found

as follows:

It is apparent from the medical record that the claimant was restricted from walking the required distance from the parking lot to the job site while carrying his tool box. The claimant testified that some of these tools are irreplaceable, and the total value of the tools is from $2,000.00 to $4,000.00. The employer argues that the claimant is not required to carry his tools to the job site since a "gang box" is in place to store the tools. The claimant testified that there have been thefts from those "gang boxes" and that the employer is not willing to reimburse employees or replace tools lost due to theft. This testimony was not refuted by the employer. We find that the claimant's refusal of selective employment offered on January 12, 2000, was justified.

- 4 - Claimant's unrebutted testimony and Dr. Knickerbocker's

medical records and opinions constitute credible evidence to

support the commission's findings. Those findings are binding

and conclusive upon us on appeal, and were sufficient to support

the commission's decision that claimant was justified in

refusing selective employment. 1

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

Affirmed.

1 Because we find that claimant was justified in refusing selective employment, we need not address the marketing issue. However, we note that there is ample credible evidence to support the commission's finding that claimant adequately marketed his residual capacity after January 12, 2000.

- 5 -