Jules Hairstylists, Inc. v. Galanes

• Decision Date: 03 September 1985
• Docket Number: No. 0035-85,0035-85
• Citation: 334 S.E.2d 592,1 Va.App. 64
• Parties: JULES HAIRSTYLISTS, INC., et al. v. Hazel GALANES. Record
• Court: Virginia Court of Appeals

Page 592

334 S.E.2d 592

1 Va.App. 64

JULES HAIRSTYLISTS, INC., et al. v. Hazel GALANES.

Record No. 0035-85.

Court of Appeals of Virginia.

Argued May 29, 1985.

Decided Sept. 3, 1985.

Forest A. Nester, Norfolk (Seawell, Dalton, Hughes & Timms, Norfolk, on brief), for appellants.

Woodson T. Drumheller, Richmond, for appellee.

Present: HODGES, MOON and COLE, JJ.

COLE, Judge.

This is an appeal of a decision of the Industrial Commission finding that the appellants, Jules Hairstylists, Inc. (employer), had not borne the burden of proving a change in condition based upon the ground that Hazel Galanes (claimant) refused to interview for selective work.

The claimant sustained a fracture of the left shoulder by accident on November 6, 1979. The injury arose out of and in the course of her employment. The employer's insurance carrier accepted the claim and paid compensation for total work incapacity beginning November 6, 1979, through November 10, 1981, when the award was terminated. An award was entered on January 20, 1983, providing the claimant compensation for 30% permanent partial loss of use of the left arm covering a period of 60 weeks. The claimant was awarded additional temporary total disability benefits beginning March 3, 1983, pursuant to her application alleging a change of condition. This award continued until May 30, 1984, when the insurance carrier filed an application before the Industrial Commission, alleging a change of condition from the compensable industrial accident of November 6, 1979. The basis for the application was that the claimant had "refused to interview for selective employments on 5-18-84 and 5-22-84 for positions approved by Dr. Butterworth." This review is limited to the issues addressed in that application.

This appeal involves the application of § 65.1-63 of the Virginia Workers' Compensation Act, which states:

If an injured employee refuses employment procured for him suitable to his capacity, he shall not be entitled to any compensation at any time during the continuance of such refusal, unless in the opinion of the Industrial Commission such refusal was justified.

In Talley v. Goodwin Brothers Lumber Co., 224 Va. 48, 52, 294 S.E.2d 818, 820 (1982), and in Klate Holt Co. v. Holt, 229 Va. 544, 331 S.E.2d 446 (1985), the Supreme Court said when the employer establishes that a job offer has been tendered within the residual capacity of the injured employee, the burden of persuasion then shifts to the employee to show justification for refusing the offer of selective work. We, therefore, have two facts to consider. First is whether the employer offered suitable selective employment within the capacity of the claimant, and second is whether the claimant, if she refused the offer, was justified in doing so. In view of our decision in this case, we need only consider the first factor.

In this case no job offer was made, due at least partly to the fact that the claimant did not attend the interviews. The Industrial Commission has held that if a claimant fails without justification to keep a job interview, this amounts to a refusal of an offer of selective work suitable to his capacity. Pleasants v. Fairfax County Police Department, 58 O.I.C. 289, 293 (1978); Flowers v. Clinebell, 57 O.I.C. 124, 125 (1976). No issue has been taken in this case as to this holding.

The injury to the claimant's shoulder was severe. The claimant slipped on a wet floor and fractured the left humerus. The claimant's surgeon gave her a 30% permanent disability, and an independent medical examination made at the request of the employer rated the disability even higher. Both doctors stated that the claimant could not return to her previous job as a hairdresser, but that a light duty position could be tailored to her left shoulder disability.

Armed with these reports, the insurance carrier employed Crawford Rehabilitation Services to aid the claimant in securing employment, and one of their employees, Francis Charles DeMark, Jr., was assigned to the case. The consultant prepared job descriptions for three job types that he thought would be suitable for the claimant to perform. The first was a clerk-receptionist, which required telephone, typing and filing responsibilities. The second was a sales clerk, or salesperson, in general retail trade. Here the worker would advise customers concerning the use and quality of the merchandise, and other duties may include demonstrating the merchandise sold, stocking shelves, marking prices, totaling price and tax on merchandise, receiving payment, making change, keeping records of sales, cleaning the store, and preparing inventory of stock to order merchandise. The third was a cashier or self-service gas station attendant. The worker would be required to count monies for gas and keep records of sales of other retail items, such as cigarettes, oil, soft drinks, candy, etc.

From the beginning, conflict arose between the consultant, DeMark, and the claimant over the capacity of the claimant to perform selective employment. The employer contends that the consultant arranged three job interviews for the claimant, namely, with Command Performance, a hairstyling salon, and with a Texaco service station, both...