J.C.Penney Company v. Niki Costianis ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
J. C. PENNEY COMPANY
and
TRAVELERS INSURANCE COMPANY
v. Record No. 0631-95-2 MEMORANDUM OPINION * BY
JUDGE JERE M. H. WILLIS, JR.
NIKI COSTIANIS FEBRUARY 13, 1996
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
William Orr Smith, for appellants.
Bruce K. Billman, for appellee.
On appeal from an award of compensation to Niki Costianis,
J. C. Penney Company and Travelers Insurance Company (J. C.
Penney) contend that (1) no credible evidence supports the
commission's finding that Ms. Costianis was justified in refusing
the selective employment offered by J. C. Penney and (2) the
commission erred in relying on Setliff v. Tultex Corp., 68 O.I.C.
160 (1989). We disagree and affirm the commission's decision.
On appeal, we view the evidence in the light most favorable
to the party prevailing below. Crisp v. Brown's Tysons Corner
Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 196, 196 (1986).
The findings of the commission, if based on credible evidence,
are conclusive and binding on this Court. Morris v. Badger
Powhatan/Figgie Int'l Inc., 3 Va. App. 276, 279, 348 S.E.2d 876,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
877 (1986).
On May 7, 1992, Ms. Costianis sustained a compensable injury
by accident arising out of and in the course of her employment by
J. C. Penney. Ms. Costianis suffered injuries to her right arm,
shoulder, right hip, pelvis, and sacrum when she fell from a
moveable ladder. As a result of her injuries, she suffers from
urinary incontinence.
Ms. Costianis was initially treated for the incontinence by
Dr. Bradley Gray, a urologist. After seven months of treatment,
Dr. Gray reported to Dr. Marriott Johnson, her treating
orthopaedic surgeon, that her condition would not improve and
that she needed to void every twenty to thirty minutes. Ms.
Costianis was then referred to Dr. William Steers at the
University of Virginia Health Sciences Center. After evaluating
her condition, he reported to Dr. Johnson on January 24, 1994,
that Ms. Costianis's "urinary urgency, frequency and urge
incontinence, [was] most likely on the basis of nerve injury.
Certainly, she represents a more severe case of urge
incontinence. This incontinence is triggered by activity
especially in the lower limbs."
On January 25, 1994, Dr. Johnson notified J. C. Penney that
he thought Ms. Costianis should try returning to work, on a part-
time trial basis, four hours a day, three days a week. Dr.
Steers agreed, but noted that Ms. Costianis required access to a
toilet facility and privacy.
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On March 28, 1994, J. C. Penney sent Ms. Costianis the
following offer of part-time work:
This is to advise you that your employer is
offering work within the restrictions
recommended by Dr. Johnson on 02-17-94. You
will be working four hours a day, three days
a week, to begin Monday, April 11, 1994.
Please report to Sabra Roberts, Manager, at
your usual J. C. Penney store at 10:00 a.m.
on that date. If you have questions, please
feel free to call Sabra prior to that time.
Ms. Costianis declined the offer. She testified that she did so
because she knew from her experience that, due to her need to
leave the floor frequently, she could not perform the job
effectively. She testified that when she is active, she must
void every ten to twenty minutes. When she is relaxing, she must
void every thirty to sixty minutes. Her testimony was
corroborated by the medical and physical therapy records.
Josephine Sumpolec, Ms. Costianis's personnel supervisor,
testified that J. C. Penney was willing to accommodate Ms.
Costianis's special needs. However, she testified that she never
communicated this fact to Ms. Costianis.
J. C. Penney contends that Ms. Costianis should have tried
the tendered employment and that her refusal of the job without a
trial was unjustified. See Thompson v. Hampton Institute, 64
O.I.C. 313, 315 (1985).
Virginia Code § 65.2-510 provides, in pertinent part:
If an injured employee refuses employment
procured for him suitable to his capacity, he
shall only be entitled to the benefits
provided for in § 65.2-603 during the
continuance of such refusal, unless in the
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opinion of the Commission such refusal was
justified.
"A finding of unjustified refusal must be based on '(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.'" United Parcel Service v.
Godwin, 14 Va. App. 764, 767, 418 S.E.2d 910, 912 (1992)
(citations omitted). The employer has the burden of proving
these elements in order to obtain relief under Code § 65.2-510.
Ellerson v. W.O. Grubb Steel Erection Co., 1 Va. App. 97, 102,
335 S.E.2d 379, 380 (1985).
In denying J. C. Penney's application, the commission made
the following findings:
Upon review of the record, we conclude that
the employee's refusal of selective
employment was justified. Although the
employer presented evidence that it was
willing [to] address the claimant's special
needs, this was not communicated to the
claimant. From the claimant's perspective,
the employer was offering her pre-injury job
without any modification. Because, as noted
by claimant's urologist, Costianis required
frequent bathroom access, the job offer was
inconsistent with the claimant's work
restrictions. Consequently, we find that the
employer did not make a bona fide offer of
selective employment within the employee's
remaining capacity.
The commission's findings are supported by the medical
record, Ms. Costianis's testimony, and the testimony of Ms.
Sumpolec. The commission considered Ms. Costianis's
incontinence, her knowledge of the requirements of a sales job,
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her physician's qualified release, and the lack of any
communication to her that J. C. Penney's could accommodate her
needs.
We find no merit in J. C. Penney's argument that the
commission erred in relying on Setliff v. Tultex, 68 O.I.C. 160
(1989). Setliff was not cited by the commission to support its
holding that J. C. Penney failed to make a bona fide offer of
selective employment to Ms. Costianis.
The decision of the commission is affirmed.
Affirmed.
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