Cable v. Carpenter, Record No. 2139-09-4 (Va. App. 6/8/2010)
| Decision Date | 08 June 2010 |
| Docket Number | Record No. 2139-09-4. |
| Court | Virginia Court of Appeals |
| Parties | ROCHESTER CABLE AND INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, v. MELISSA ANN CARPENTER. |
Kathryn Lea Harman (Andrew M. Alexander; Semmes, Bowen & Semmes, on briefs), for appellants.
David L. Bayne, Jr. (Ashcraft & Gerel, LLP, on brief), for appellee.
Present: Judges Elder, Frank and Senior Judge Coleman
Rochester Cable and the Insurance Company of the State of Pennsylvania (employer) appeal a decision of the Workers' Compensation Commission (commission) finding Melissa Ann Carpenter (claimant) reasonably refused the selective employment offered by employer and that upon leaving her light-duty position, she adequately marketed her residual work capacity and was entitled to temporary total disability benefits from January 18, 2008 and continuing. For the reasons stated, we affirm the commission's award of benefits.
"On appeal, we view the evidence in the light most favorable to [claimant,] the prevailing party before the commission." Cent. Va. Obstetrics & Gynecology Assocs., P.C. v. Whitfield, 42 Va. App. 264, 269, 590 S.E.2d 631, 634 (2004). "Factual findings of the commission will not be disturbed on appeal, if based upon credible evidence." DePaul Med. Ctr. v. Brickhouse, 18 Va. App. 506, 507, 445 S.E.2d 494, 495 (1994).
So viewed, the evidence established that claimant sustained a compensable workplace injury to her right shoulder on June 14, 2006, which she aggravated in a separate incident on July 28, 2006. Prior to the injury she worked as a ferring operator, a job that required frequent heavy lifting. Because claimant required surgery and was unable to perform any work for a period of time afterward, employer agreed to pay temporary total disability (TTD) benefits from October 19, 2006 through January 17, 2007. Claimant was released to perform light-duty work in January 2007.
Wayne Clevenger, employer's workers' compensation coordinator, offered claimant a light-duty position within the company that involved data entry and filing. Claimant accepted the position with the knowledge that it involved "desk work," and she returned to work January 18, 2007. Claimant received work from two different departments within the company, each of which expected to have at least six weeks of work for her to complete. She completed her data entry assignments in "less than a week," her filing assignments in "less than two weeks," and all of her assignments by the end of January 2007. Claimant testified that she "begg[ed] everybody" to give her additional work, but "[n]o one had anything for [her] to do." She asked Clevenger for more work, but "like everybody else," he did not have any work to give her. She explained her understanding of the job when she accepted it was that it would involve "desk work," "[n]ot to go in there and do nothing . . . [a]nd to be driven crazy." She reported to work for between five and six consecutive weeks without having any work to do or tasks assigned to her. She explained that "[y]ou weren't allowed to have reading material" and were not permitted to do anything else while at work. She often came home crying because she spent her days "stuck in a room begging for work." She felt she "was basically pushed out of [her] job." Claimant's husband testified on her behalf, echoing claimant's frustration with the lack of work available to her and confirming that she often came home from work crying as a result. Claimant left her job on March 12, 2007, seven weeks and four days after she began her light-duty position with employer, and five weeks and five days after she completed her assigned tasks. Although claimant called a friend in employer's human resources department and said "I probably wouldn't be seeing her anymore" before leaving the job, claimant conceded she did not provide employer with formal notice that she was not planning to return to work.
Claimant did not look for work from March 2007 through August 2007.1 She again became totally disabled in August 2007, and after her second shoulder surgery in December 2007, claimant's doctor released her to perform light-duty work. Claimant looked for work suitable to her capacity from January 24, 2008 until June 12, 2008, the date of the hearing before the commission.
The commission found that after claimant was released to return to light-duty work on January 18, 2007, employer failed to provide claimant with a bona fide offer of light-duty employment or, alternatively, that claimant did not unjustifiably refuse the employment that was offered, that claimant adequately marketed her residual work capacity, and that claimant was entitled to TTD benefits from January 18, 2008 and continuing. Employer appealed each of the rulings of the commission.
"`Code § 65.2-510 was enacted . . . to encourage employers to procure employment suitable to partially incapacitated employees.'" Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31, 37, 542 S.E.2d 785, 788 (2001) (quoting Food Lion, Inc. v. Lee, 16 Va. App. 616, 619, 431 S.E.2d 342, 344 (1993)) (alteration in original). "An employer seeking to terminate compensation benefits pursuant to the statute must establish `(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.'" Id. (quoting Ellerson v. W.O. Grubb Steel Erection Co., 1 Va. App. 97, 98, 335 S.E.2d 342, 344 (1993)). Whether each of these elements has been proved is a question of fact. Ellerson, 1 Va. App. at 98, 335 S.E.2d at 380.
"The term `bona fide' is defined as `made in good faith; without fraud or deceit.'" Shepherd v. Davis, 265 Va. 108, 121, 574 S.E.2d 514, 521 (2003) (quoting Black's Law Dictionary 168 (7th ed. 1999)). "To constitute a bona fide offer, the selective employment contemplated by Code § 65.2-510 must be upon terms and conditions sufficiently specific to permit informed consideration by an employee, and comprised of duties consistent with employee's remaining work capacity." Underwood, 35 Va. App. at 37, 542 S.E.2d at 788 (citation omitted). The employer bears the burden of proving it made a bona fide offer of selective employment within the employee's residual capacity. Am. Furniture Co. v. Doane, 230 Va. 39, 42, 334 S.E.2d 548, 550 (1985). "[If] the employer establishes that [bona fide] 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). Whether "[the] refusal was justified" is to be determined "in the opinion of the Commission." Code § 65.2-510. "An employee who unjustifiably refuses selective employment forfeits his entitlement to wage loss benefits `during the continuance of such refusal.'" Food Lion, Inc. v. Newsome, 30 Va. App. 21, 24, 515 S.E.2d 317, 319 (1999) (quoting Code § 65.2-510)).
"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 offer to work.'" Lee, 16 Va. App. at 619, 431 S.E.2d at 344 (quoting Johnson v. Va. Empl. Comm'n, 8 Va. App. 441, 447, 382 S.E.2d 476, 478 (1989)).
[T]he determination of justification to refuse employment involves "a much broader inquiry than merely considering whether the intrinsic aspects of the job are acceptable to the prospective employee." Justification to refuse an offer of selective employment "may arise from factors totally independent of those criteria used to determine whether a job is suitable to a particular employee."
Id. (quoting Johnson, 8 Va. App. at 452, 382 S.E.2d at 481). This Court has observed further that
[i]n any legislation as extensive as workers' compensation, it is impossible to anticipate and legislate every potential event intended to be covered. For that reason, phrases such as "unless in the opinion of the Commission such refusal was justified" are provided so that those appointed to implement the compensation laws may make discretionary judgments that carry out the legislative intent. [Where] credible evidence in the record supports it, we find that . . . the commission's opinion is in accord with that intent . . . .
Brickhouse, 18 Va. App. at 508, 445 S.E.2d at 495 ().
Here, the evidence, when viewed in the light most favorable to claimant, the prevailing party below, established that employer offered claimant a position completing data entry and filing for two departments within the company. Claimant accepted that job, which she began on January 18, 2007, and it originally provided her with a reasonable amount of light-duty work suitable to her restricted capacity, rendering it a bona fide offer for purposes of the statute. However, the evidence, viewed in the light most favorable to claimant, also established that by the end of January, less than two weeks after claimant began her light-duty position, she had completed all of her assigned tasks. Claimant requested more work from her supervisor and other co-workers, but despite her efforts to obtain work, she was without any tasks to complete for more than five weeks before she left the job. She testified she was not permitted to occupy herself in any other way during that period of time, such as by reading a book or a magazine. We conclude the extended length of time claimant was required to be present at work without having any work-related tasks to perform and without being allowed to engage in any other...
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