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REFUSAL OF SELECTIVE EMPLOYMENT
Claimant unjustifiably refused selective employment when she declined the cashier position offered to her. See Klate Holt Co. v. Holt, 229 Va. 544, 545, 331 S.E.2d 446, 447 (1985); Talley v. Goodwin Bros. Lumber Co., 224 Va. 48, 52, 294 S.E.2d 818, 820 (1982).
[I]n order to support a finding [of refusal] based upon Code [Sec. 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).
"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)). The employer bears the burden of showing that it procured for the employee a job offer within the employee's residual capacity. Ellerson, 1 Va. App. at 102, 335 S.E.2d at 382.
Code Sec. 65.2-510 terminates continued benefits paid to an employee who refuses employment procured for him suitable to his capacity. E.g. Thompson v. Hampton Institute, 3 Va. App. 668,670, 353 S.E.2d 316, 316-17 (1987) (addressing former Code Sec. 65.1-63 recodified as Sec. 65.2-510).
Burden of Proof. 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 the court can say as a matter of law that claimant's evidence sustained her burden of proof, the commission's findings are binding and conclusive. See Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Not every discharge to which the employer can assign a reason is a "justified" discharge, and the commission errs if it does not consider the nature of the conduct leading to the discharge. Claimant’s inability to attend satisfactorily to her selective employment job due to unrelated health problems, the conduct that led to her discharge, was equivalent to an unjustified refusal of selective employment for purposes of the Act. A partially disabled employee's inability to perform selective employment satisfactorily warrants a suspension of compensation benefits until such time as the worker cures the situation by proving that the health problems have resolved to the point that the worker can perform selective employment satisfactorily and has made a reasonable effort to market his or her residual work capacity. When a disabled employee is discharged from selective employment, the inquiry focuses on whether the claimant's benefits may continue in light of the dismissal; an employee's benefits will be permanently forfeited only when the employee's dismissal is justified, the same as any other employee who forfeits benefits when discharged for justified reason. A justified discharge does not simply mean that the employer can identify or assign a reason attributable to the employee as cause for the discharge; whether the reason for the discharge is for cause or is justified must be determined in the context of the act and whether the conduct is of such a nature that it warrants a permanent forfeiture of rights and benefits. Excessive absenteeism caused by a non-work-related injury beyond the employee's control is not the type of willful conduct or misbehavior that, upon termination, justifies a forfeiture of workers' compensation benefits. Norfolk Shipbuilding & Drydock Corporation v. Arthur J. Robinson, Record No. 1257-96-1 (November 26, 1996).
Suspension vs. Forfeiture of Benefits. When a non-work-related disability prevents a partially disabled employee from returning to his or her pre-injury work or from accepting selective employment, the unrelated disability is not justification for the employee to refuse or not to perform selective employment or fail to market his or her residual work capacity; the failure of the employee to do selective work or to market his or her residual capacity due to an unrelated disability is equivalent to an unjustified refusal of selective employment. There is no distinction between a worker who refuses selective employment due to unrelated health problems and one who is unable to attend satisfactorily to his or her selective employment due to unrelated health problems and is discharged as a result; the latter is equivalent to an unjustified refusal of selective employment which warrants suspension of benefits. Eppling v. Schultz Dining Programs, 18 Va. App. 125, 128-29, 442 S.E.2d 219, 221-22 (1994). The reasons given by employer in this case at best show a misunderstanding, at worst a laziness, resulting in slight inconvenience to the employer. They do not demonstrate "the type of willful misconduct or misbehavior that, upon termination, justifies a forfeiture of workers' compensation benefits." Id. at 130, 442 S.E.2d at 222. Norfolk Shipbuilding & Drydock Corporation v. Arthur J. Robinson, Record No. 1257-96-1 (November 26, 1996).
Cure. A cure by words alone, a "verbal cure," of an unjustified refusal of medical treatment, is effective if it is made in good faith. In the analogous area of the cure of a refusal of selective employment or vocational rehabilitation, courts have held that a verbal cure is effective if it is made in good faith. See Christiansen v. Metro Bldg. Supply, Inc., 18 Va. App. 721, 724, 447 S.E.2d 519, 521 (1994), aff'd on reh'g, 19 Va. App. 513, 453 S.E.2d 302 (1995) (refusal of selective employment may be cured by claimant's offer to accept the previously refused employment if made "in good faith"); James v. Capitol Steel Constr. Co., 8 Va. App. 512, 518, 382 S.E.2d 487, 490 (1989) ("[a]ssuming that the refusal to cooperate with vocational rehabilitation could be cured by a verbal statement of willingness to cooperate . . . it must be made in good faith"); Thompson v. Hampton Institute, 3 Va. App. 668, 671, 353 S.E.2d 316, 317 (1987) (claimant may cure refusal of selective employment when he "in good faith advises his employer that he is willing to accept such work"). Courts have "historically treated and discussed [these similar areas] in conjunction with one another," Hercules, Inc. v. Carter, 13 Va. App. 219, 223, 409 S.E.2d 637, 639 (1991), aff'd on reh'g en banc, 14 Va. App. 886, 419 S.E.2d 438 (1992). For a verbal cure of an unjustified refusal of medical care to be effective, it must be made in good faith. A claimant must demonstrate his or her good faith through an affirmative action or a showing of circumstances mitigating the failure to act. Fairfax County School Board v. Ellen M. Rose, Record No. 1700-97-4 (January 26, 1999).
Claimant was terminated for cause from selective employment procured by the employer for failing to comply with established company rules and receiving six "constructive advice" memos within two years. An injured employee terminated for misconduct forfeits his or her wage compensation benefits and is not eligible to cure his or her refusal of selective employment. See Chesapeake & Potomac Telephone Co. v. Murphy, 12 Va. App. 633, 639-40, 406 S.E.2d 190, 193, aff'd en banc, 13 Va. App. 304, 411 S.E.2d 444 (1991); but see Eppling v. Schultz Dining Programs, 18 Va. App. 125, 128-30, 442 S.E.2d 219, 221-22 (1994) (finding that a termination "for cause" does not work a forfeiture of claimant's eligibility to cure a constructive refusal of selective employment where claimant's conduct does not rise to the level of misconduct). In this case the employer did not contest a finding that claimant's termination was not because of Murphy misconduct and thus the claimant he was eligible to cure the constructive refusal. After claimant was terminated, he obtained other selective employment at a wage equal to or greater than his Food Lion selective employment wage, and thus cured his constructive refusal of selective employment. Thereafter, claimant changed jobs several times, each time increasing his wage and thereby proportionately decreasing Food Lion's obligations to pay partial disability benefits. Eventually, however, claimants' doctor revised claimant's employment restrictions to limit his forward bending. In order to comply with his doctor's restrictions, claimant had to terminate his job. He remained unemployed for seven and one-half weeks, during which time he sought other employment within his medical limitations. Under Code Sec. 65.2-510, once an employee has cured an unjustified refusal of selective employment, he or she is entitled to reinstatement of benefits if the employee reasonably markets his or her residual capacity. Once an employee cures an unjustified refusal of employment, Code Sec. 65.2-510 returns the parties to their pre-refusal status, and Code Sec. 65.2-502 obligates the employer to pay partial incapacity benefits. When an employee has cured an unjustified refusal of selective employment, the Act creates no ongoing obligation on the employee's part to establish that he or she is "still curing the earlier refusal," other than the requirement that the employee make reasonable efforts to market his or her residual capacity. See Code Sec. 65.2-510; Holly Farms v. Carter, 15 Va. App. 29, 42, 422 S.E.2d 165, 171-72 (1992). Once an employee has cured the unjustified refusal, he or she is entitled to reinstatement of benefits when the employee is disabled and reasonably markets his or her residual work capacity as in this case. Food Lion, Inc. v. Curtis T. Newsome, Record No. 1739-98-2 (June 8, 1999). WP Version.
Code Sec. 65.2-510(C) provides in pertinent part as follows: “A cure of unjustified refusal pursuant to subsection A may not be established if the unjustified refusal lasts more than six months from the last day for which compensation was paid before suspension pursuant to this section . . . .” The evidence did not establish that the cure occurred within six months of his refusal of selective employment on August 15, 1996. Accordingly, the commission did not err in finding that Code Sec. 65.2-510(C) applied to this case and barred claimant's change-in-condition application for further compensation benefits. "Whether the employer is responsible for medical expenses . . . depends upon: (1) whether the medical service was causally related to the industrial injury; (2) whether such other medical attention was necessary; and (3) whether the treating physician made a referral to [sic] the patient." VolvoWhite Truck Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906 (1985). There is no evidence in the record to establish that the claimant suffered injuries other than to his neck, back, and left upper extremity in his May 15, 1996 accident. All other bills, except those for one doctor’s services, are clearly unrelated to the claimant's May 15, 1996 industrial accident. Robert Raphael Ambrogi, Jr. v Manpower, Inc., Record No. 1360-99-4 (November 23, 1999). WP Version.
The commission did not err in finding that claimant had not unjustifiably refused selective employment. "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)).Claimant's unrefuted testimony supports the commission's finding that employer never offered claimant a light-duty job in June 1998. While employer may have made her doctor aware of such a job, employer never specifically communicated a job offer to claimant, whose treating physician had left her with the impression that she was excused from work until at least June 30, 1998. CVS Distribution Center/CVS Corp. v. Deloris Battle, Record No. 1993-99-2 (December 21, 1999). WP Version.
When a disabled employee is discharged from selective employment, the "inquiry focuses on whether the claimant's benefits may continue in light of [the] dismissal." An employee's workers' compensation benefits will be permanently forfeited only when the employee's dismissal is "justified," the same as any other employee who forfeits her employment benefits when discharged for a "justified" reason. Eppling v. Schultz Dining Programs, 18 Va. App. 125, 128, 442 S.E.2d 219, 221 (1994) (quoting Richmond Cold Storage Co. v. Burton, 1 Va. App. 106, 111, 335 S.E.2d 847, 850 (1985)). "The reason for the rule is that the wage loss is attributable to the employee's wrongful act rather than the disability." Timbrook v. O'Sullivan Corp., 17 Va. App. 594, 597, 439 S.E.2d 873, 875 (1994). An employee's "wrongful act" is the linchpin for a "justified" discharge--one which warrants forever barring reinstatement of workers' compensation benefits. See Eppling, 18 Va. App. at 128-29, 442 S.E.2d at 221-22. Simply identifying or assigning "a reason attributable to the employee as the cause for his or her being discharged" is not sufficient to establish a forfeiture of benefits. Id. at 128, 442 S.E.2d at 221. In this case the evidence supported the commission's findings that claimant's absences were due to her need for medical attention and physical therapy or because she was unable to work due to back pain which was related to her compensable injury by accident. The commission further found that claimant did not fail to report her absences to employer and that prior to her termination date, employer had never reprimanded or warned claimant regarding her absenteeism. The commission could reasonably conclude that claimant was not terminated for a justified cause as required for a termination of benefits. Chewning & Wilmer Construction v. Crump, Record No. 0993-99-2 (January 27, 1200). WP Version.
The commission did not err by holding that claimant's claim was not barred by the two-year statute of limitation under Code Sec. 65.2-708(A) or barred by the six-month limitation period under Code Sec. 65.2-510(C). On June 2, 1995, claimant suffered a compensable back injury and was awarded temporary total disability benefits from June 12, 1995 through February 5, 1996, when he returned to light-duty employment. After returning to work, claimant was awarded temporary partial disability, but then claimant unjustifiably refused light-duty work suitable to his capacity. After a hearing, the commission found that claimant had unjustifiably refused light-duty work suitable to his capacity and suspended his benefits pursuant to Code Sec. 65.2-510 as of April 21, 1996, the last day for which compensation had been paid. Claimant then became temporarily and totally disabled and was awarded temporary total benefits. Claimant concedes that he did not cure the refusal of selective employment within within six months from the date he refused selective employment, Code Sec. 65.2-510(C), by accepting the offered selective employment or marketing his residual capacity, see generally Herbert Bros., Inc. v. Jenkins, 14 Va. App. 715, 419 S.E.2d 283 (1992); Thompson v. Hampton Inst., 3 Va. App. 668, 353 S.E.2d 316 (1987). Code Sec. 65.2-510(C) is inapplicable to a change-in-condition application for temporary total disability. Code Sec. 65.2-708(A) requires that a change-in-condition application be filed within twenty-four months from the last day for which compensation was paid. A change in an employee's physical condition that is compensable under Code Sec. 65.2-708 includes, among certain other changes, any "'progression, deterioration, or aggravation'" of a previously compensated injury. Leonard v. Arnold, 218 Va. 210, 213-14, 237 S.E.2d 97, 99 (1977) (quoting 3 Arthur Larson, The Law of Workmen's Compensation, Sec. 81.31 (1976) (construing former Code Sec. 65.1-99)). However, "a new and separate accidental injury" may not be compensated as a change in condition of a previous injury. Id. at 214, 237 S.E.2d at 99. Thus, when an employee seeks compensation under Code Sec. 65.2-708, the employee must prove that the change in condition is "causally connected with the injury originally compensated." King's Market v. Porter, 227 Va. 478, 483, 317 S.E.2d 146, 148 (1984). The language of Code Sec. 65.2-708(A) providing that "[n]o such review shall be made after twenty-four months from the last day for which compensation was paid," is construed to mean that "the change in condition must occur within twenty-four months from the date compensation was last due or paid." Code Sec. 65.2-708(A); Armstrong Furniture v. Elder, 4 Va. App. 238, 241, 356 S.E.2d 614, 615 (1987) (construing former Code Sec. 65.1-99). A claimant is not required by Code Sec. 65.2-708(A) to produce the evidence prior to the expiration of the twenty-four month limitation, so long as the application alleged that a change in condition existed within the time of the filing. See Johnson v. Smith, 16 Va. App. 167, 169-70, 428 S.E.2d 508, 510 (1993); Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 678, 401 S.E.2d 213, 215 (1991). Employer does not dispute that claimant filed his application within twenty-four months from the date that he last received compensation. Employer argues, however, that claimant did not prove that he was totally disabled within the twenty-four month period because the doctors report was dated after 24 months. However, the notion that the date of a medical report or even a doctor's examination must be within this statutory period in order to prove the date of onset of disability is not reasonable. A doctor may conduct an examination and, together with a medical history, render an opinion as to the cause and date of onset of a disability. The June 16, 1998 office note by claimant's treating physician, stated that claimant had been totally disabled since October, 1997, when the doctor reported that a recent MRI revealed a small new recurrent herniated disc. Southwest VA Tire, Inc. v. Mark A. Bryant, Record No. 1492-99-3 (February 29, 2000). WP Version.
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 Sec. 65.2-510. "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)). 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). Claimant's treating physician, approved the job description provided by the vocational counselor, and in a letter he reiterated his opinion that the claimant could perform the job described. Although her doctor did express reservations about the commute time and noted that the "amount of commute being required for this patient may be excessive," the claimant, did not show 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. While the doctor noted claimant's concerns about the commute time and the doctor 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. Cynthia Krohn v. Mary Immaculate Hospital, Record No. 2517-99-1 (February 29, 2000). WP Version.