Talley v. Goodwin Bros. Lumber Co., 810790
| Decision Date | 09 September 1982 |
| Docket Number | No. 810790,810790 |
| Citation | 224 Va. 48,294 S.E.2d 818 |
| Parties | Percell TALLEY v. GOODWIN BROTHERS LUMBER COMPANY, et al. Record |
| Court | Virginia Supreme Court |
Peter M. Sweeny, Alexandria (Ashcraft & Gerel, Alexandria, on brief), for appellant.
Robert C. Metcalf, Richmond, (Newman & Metcalf, Richmond, on brief), for appellees.
Before CARRICO, C.J., and RUSSELL, COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ.
On April 17, 1979, Percell Talley suffered an industrial accident when a sliver of wood became imbedded in his right hand while he was working as a laborer for Goodwin Brothers Lumber Company. The wound became infected, and Talley nearly lost his hand. After he attained a plateau of medical improvement, Talley, who had been receiving disability compensation pursuant to an agreement with his employer, was awarded, on the employer's application, a specific disability rating pursuant to Code § 65.1-56. The employer paid Talley the required 37.50 weeks of specific disability compensation based upon 25% functional loss of use of his hand.
When his specific disability payments terminated, Talley filed a change-of-condition application alleging incapacity to engage in his previous occupation. 1 At a hearing conducted on December 22, 1980, the employer's defense was that Talley had refused an offer of selective work. Relying on the October 16, 1980, report of the attending physician, Dr. Daniel N. Kulund, that Talley was "unable to engage in his previous occupation at the sawmill," and the failure of the employer to submit to Dr. Kulund for approval a detailed job description, the hearing commissioner stated in his opinion that the employer had not established a "definite refusal of an offer of selective work within the claimant's physical capabilities." The commissioner awarded Talley compensation to continue during temporary total incapacity. The full Commission, on review, reversed the award, finding in its opinion that Talley had, without justification, refused selective employment offered by the employer.
On appeal, Talley contends that he was justified in refusing an offer of selective employment without the prior approval of his attending physician, or, alternatively, that the evidence was insufficient to support the Commission's finding of unjustified refusal of selective employment.
Talley's contentions focus on events occurring just prior to the hearing on December 22, 1980. On December 16, 1980, Dr. Kulund reported to the employer's insurer concerning Talley's condition. The report, filed by the employer with the Commission on December 18, 1980, concluded with the following paragraph:
Although Mr. Talley cannot return to his old job at the sawmill, he can certainly do any job that does not involve the use of two good hands. I would not want his hand with the finger sticking out near any machinery, or in work that would involve carrying objects of over ten pounds with both hands, pushing, pulling or climbing.
By letter to Talley of December 16, 1980, signed by W. T. Goodwin, the employer requested that Talley report to work on December 19, 1980, at a specified hourly rate of compensation to perform duties "cleaning up and driving a short bed dump truck." The letter recited the employer's understanding that Dr. Kulund had "advised" that Talley was able to return to work provided he did not get his "bad finger" near machines, did not lift more than 10 pounds and did not do any pushing, pulling or climbing. The letter then stated, "You will not have to push, pull or climb or lift over 10 lbs., and we do not want you to put your bad hand near any machines that would possibly injure your hand." The employer also filed a copy of this letter with the Commission on December 18, 1980.
In support of his contention that the employer's tender of selective employment was invalid as a matter of law, Talley relies on past decisions of the Commission that state or imply that the attending physician must approve a specific job description prior to its being offered to the employee. 2 In its opinion in the present case, however, the Commission acknowledged its requirement of medical approval where the claimant is receiving compensation for temporary total or temporary partial disability. But the Commission implied that the requirement would not be applicable in the present case, one of first impression, where an offer of selective employment was made following a rating for permanent disability. Here, permanent partial incapacity was uncontested, but the employer raised the refusal of selective employment as an affirmative defense to the employee's application for continued compensation.
Nothing in Code § 65.1-63, which defines the consequences of an employee's refusal of selective employment, 3 prohibits its use...
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