Ronald Douglas Smith v. Kershaw Automotive

• Court: Court of Appeals of Virginia
• Decided: May 30, 1995
• Docket: 1794941
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Willis and Bray Argued at Norfolk, Virginia

RONALD DOUGLAS SMITH

v. Record No. 1794-94-1 MEMORANDUM OPINION * PER CURIAM KERSHAW AUTOMOTIVE, ET AL. MAY 30, 1995

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Stuart A. Saunders (Saunders & DeSaulniers, P.C., on brief), for appellant. Jimese L. Pendergraft (Knight, Dudley, Dezern & Clarke, P.L.L.C., on brief), for appellees.

Ronald Douglas Smith appeals a decision by the Virginia

Workers' Compensation Commission suspending his award of benefits

after finding that he unjustifiably refused selective employment

procured for him suitable to his capacity and that he failed to

cure such refusal. See Code § 65.2-510. We hold that the

commission's decision is well supported by the record and affirm

the suspension of Smith's benefits. "[I]n order to support a finding [of refusal] based upon Code [§ 65.2-510], 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." Furthermore, a person receiving workers' compensation has a duty to cooperate in efforts to get him a job he is capable of performing.

Johnson v. City of Clifton Forge, 9 Va. App. 376, 378, 388 S.E.2d

654, 655 (1990) (citations omitted). On appeal, the commission's * Pursuant to Code § 17-116.010 this opinion is not designated for publication. findings of fact are conclusive and binding if based on credible

evidence. V.P.I. & State Univ. v. Wood, 5 Va. App. 72, 74, 360

S.E.2d 376, 377 (1987).

Credible evidence supports the commission's finding that

Smith received and accepted a valid offer of light duty work

which he later abandoned. The evidence further supports the

commission's finding that the employment procured for Smith by

his former employer was within his residual capacity. While

Smith maintains that he was required to perform tasks beyond his

capacity, the record supports the commission's finding that, in

fact, he was not because he was provided with a helper to assist

him and was told by his new employer that he did not have to do

any labor beyond what was prescribed to him by his physician. The record also shows that Smith did not cooperate in

efforts to find him a job he was capable of performing. First,

Smith abandoned the job procured for him by his former employer

without any attempt to work things out. After his abandonment,

Smith, who claims his back had worsened due to his light duty

work, did not seek medical attention for more than two months.

Finally, Smith never sought the assistance of the Virginia

Employment Commission and failed to adequately market

his residual capacity.

Accordingly, we affirm the commission's decision.

Affirmed.

- 2 -