Virginia Wayside Furniture, Inc. v. Burnette

• Decision Date: 14 September 1993
• Docket Number: Nos. 1946-92-2,1960-92-2,s. 1946-92-2
• Citation: Virginia Wayside Furniture, Inc. v. Burnette, 435 S.E.2d 156, 17 Va.App. 74 (Va. App. 1993)
• Parties: VIRGINIA WAYSIDE FURNITURE, INC., et al. v. Mickey L. BURNETTE. Mickey L. BURNETTE v. VIRGINIA WAYSIDE FURNITURE, INC., et al. Record
• Court: Virginia Court of Appeals

Page 156

435 S.E.2d 156

17 Va.App. 74

VIRGINIA WAYSIDE FURNITURE, INC., et al. v.Mickey L. BURNETTE.

Mickey L. BURNETTE v.VIRGINIA WAYSIDE FURNITURE, INC., et al.

Record Nos. 1946-92-2, 1960-92-2.

Court of Appeals of Virginia.

Sept. 14, 1993.

Sarah Y.M. Kirby, Richmond (Mary Louise Kramer, Mary Ann Link, Sands, Anderson, Marks & Miller, on briefs), for Virginia Wayside Furniture, Inc., et al.

Robert L. Flax, Richmond, for Mickey L. Burnette(RecordNo. 1946-92-2).

Mickey L. Burnette, pro se(RecordNo. 1960-92-2).

Present: COLEMAN, WILLIS and ELDER, JJ.

COLEMAN, Judge.

In this workers' compensation appeal, we hold that a partially disabled employee can cure an unjustified refusal of selective employment of a job procured by his employer by obtaining other comparable employment.We also hold that the commission erred in calculating the amount of Mickey L. Burnette's temporary partial disability benefits.Accordingly, we affirm the commission's decision to award Burnette disability benefits for partial wage loss but reverse and remand the decision regarding the amount of the award.

On November 17, 1988, Burnette sustained a compensable injury by accident to his left knee while working for Virginia Wayside Furniture, Inc.The commission entered an award of $200 per week for temporary total disability benefits.On May 15, 1990, Burnette's treating physician, Dr. E.L. Clements, Jr., released Burnette to light duty work.

Virginia Wayside retained a counseling service to assist Burnette in finding a replacement job within his physical capability.The counseling service arranged two interviews that resulted in job offers.Dr. Clements approved both job descriptions as being within Burnette's physical capabilities.On June 15, 1990, Quality Bake Shop (Quality) offered Burnette a job as a baker's helper and delivery driver at $3.85 per hour during an initial two-week training period, after which they would increase his wage to $5.00 to $5.50 per hour.Quality scheduled two different starting dates for Burnette, one on June 24, 1990, and the other in early August, 1990.Burnette failed to report to work on either date.

The second job offer was from Colonial Security Service, Inc. as a security guard.The starting wage was $4.25 per hour with an increase to $4.75 per hour after four months.Burnette refused this job offer.

On July 23, 1990, Virginia Wayside filed an application requesting the commission to suspend Burnette's award based on an unjustifiable refusal of selective employment.Following a hearing on November 27, 1990, the deputy commissioner suspended Burnette's award, finding that he had unjustifiably refused suitable selective employment that Quality and Colonial Security Service had offered.The commission affirmed the deputy commissioner's decision on March 28, 1991.

On June 25, 1991, Burnette filed an application to reinstate his disability benefits for partial wage loss on the ground that he had cured his unjustified refusal by obtaining a suitable job.Burnette had obtained a job, on his own initiative, at Sealey Optical Company beginning July 25, 1990.His starting wage was $5.00 per hour, and he was earning an average weekly wage of $205.01.The deputy commissioner denied Burnette's request for reinstatement of benefits based on a finding that Burnette's acceptance of employment at Sealey Optical at an average weekly wage less than the maximum average weekly wage available at Quality, which was $247.50 per week, did not cure his unjustified refusal of that employment.

On January 30, 1992, Burnette filed a second application for reinstatement of benefits based on a claim that he had cured his prior unjustified refusal of selective employment.He asserts that he had accepted the job offered at Quality and that he had comparable employment.On January 28, 1992, Burnette had sent a letter to Quality accepting its June, 1990, offer of employment.Burnette knew that the job was no longer available; however, he stated that he would have accepted the job had it been available and had it paid as much or more than his job at Sealey Optical.By January, 1991, Burnette's wage at Sealey Optical had increased to $5.45 per hour with an average weekly wage of $218.Burnette also had looked for a higher paying job in the newspaper classified ads once or twice each week but had not applied for any of them.

The deputy commissioner denied Burnette's request for reinstatement of benefits, finding that his offer to accept the Quality job was not made in good faith because he knew that the job was no longer available and his sole purpose in making the futile gesture was to obtain compensation benefits.The commission reversed the deputy commissioner's decision, stating

that the claimant has done all which can reasonably be expected under the circumstances to cure his refusal of light work with Quality Bake Shop.He has applied for work there, even though no work is available.The claimant has found other light work where his earnings fall approximately in the mid-range of his anticipated earnings at Quality Bake Shop.

Virginia Wayside appeals from this decision.

I.

First, we reject Virginia Wayside's contention that the doctrines of res judicata and collateral estoppel barred the commission from considering Burnette's second application to reinstate benefits based on a repeated claim that he had cured refusal of selective employment.The circumstances that were the basis for Burnette's second application differed from the circumstances that he previously had alleged cured his unjustified refusal.In the first application, Burnette alleged a cure by virtue of the fact that he had obtained other light duty employment.In the second application, he alleged a cure by virtue of the fact that he was willing to accept the Quality job and that he was now earning a higher wage at Sealey Optical than that which would have been paid at Quality....