Klate Holt Co. v. Holt, 840515
| Citation | 331 S.E.2d 446,229 Va. 544 |
| Decision Date | 14 June 1985 |
| Docket Number | No. 840515,840515 |
| Parties | KLATE HOLT COMPANY, et al. v. Rita Fay HOLT. Record |
| Court | Supreme Court of Virginia |
Forest A. Nester, Norfolk (Seawell, Dalton, Hughes & Timms, Norfolk, on briefs), for appellant.
Stuart A. Saunders, Saunders & Rogers, Hampton, on brief, for appellee.
Present: All the Justices.
Under § 65.1-63 of the Virginia Workers' Compensation Act, when an injured employee refuses employment procured suitable to the employee's capacity, the employee will not be entitled to any compensation during the continuance of such refusal, unless the Industrial Commission determines such refusal was justified. In Talley v. Goodwin Bros. Lumber Co., 224 Va. 48, 52, 294 S.E.2d 818, 820 (1982), we said that when the employer invokes the bar of the statute and 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 modified work.
In November 1981, appellee Rita Fay Holt, age 23, sustained a compensable back injury in an industrial accident while employed at Langley Field by appellant Klate Holt Company as a messenger and mail clerk. The present proceeding stems from a May 1983 application filed by appellant insurance carrier alleging a failure and unjustified refusal by the employee to accept selective light-duty employment approved by her physician as being within her physical capacity. Following a hearing, a deputy commissioner found that the employee was justified in refusing the tendered employment and denied the insurer's application. Upon review, the full Commission, one commissioner dissenting, decided the deputy commissioner's findings of fact and conclusions of law were correct. The employer and insurer jointly appeal from dismissal of the application.
There is no dispute that the employee is permanently disabled from returning to her pre-injury work; her physician has restricted her from lifting more than 20 pounds. Likewise, there is no dispute that her physician has approved, as suitable to her physical capacity, light-duty employment procured for her by the insurer. The question on appeal is whether the Commission erred in concluding that the employee established justification for her refusal of selective employment.
The record shows that in July 1982 the insurer asked a company providing vocational placement services to assist in rehabilitation of the employee. From September 1982 to January 1983, the employee performed selective employment for Klate Holt Company as a "voucher aide," temporarily substituting for another employee. Upon termination of this period of employment, the vocational services firm resumed efforts to procure work for the employee. The firm scheduled a job interview for the employee, with a Newport News company, to be conducted in May 1983 for a secretarial position. The employee cancelled the...
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