Cecil D. McCormick, Jr. v. Neff Masonry, Inc. ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
CECIL D. MCCORMICK, JR.
v. Record No. 2127-95-3 MEMORANDUM OPINION *
PER CURIAM
NEFF MASONRY, INC. JANUARY 23, 1996
AND
TRAVELERS INSURANCE COMPANY
FROM THE VIRGINIA WORKERS'
COMPENSATION COMMISSION
(Cecil D. McCormick, pro se, on brief).
(Warren H. Britt; Guynn & Britt, on brief), for
appellees.
Cecil D. McCormick, Jr. contends that the Worker's
Compensation Commission erred in granting Neff Masonry, Inc.'s
("employer") application and suspending his compensation benefits
on the ground that he unjustifiably refused selective employment
offered to him by employer. Upon reviewing the record and the
briefs of the parties, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the commission's
decision. Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. James v. Capitol Steel
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
"To support a finding of refusal of selective employment
'the record must disclose (1) a bona fide job offer suitable to
the employee's capacity; (2) [a job offer that was] procured for
the employee by the employer; and (3) an unjustified refusal by
the employee to accept the job.'" Id. at 515, 382 S.E.2d at 489
(quoting Ellerson v. W.O. Grubb Steel Erection Co., 1 Va. App.
97, 98, 335 S.E.2d 379, 380 (1985)).
McCormick did not dispute that employer made a bona fide job
offer to him to work as a mason at its Harrisonburg, Virginia
location, and that this offer was procured for McCormick by
employer. Moreover, McCormick did not argue before the
commission that he was medically unable to perform this job.
McCormick testified that he refused the Harrisonburg job because
it was located at a work site eighty-six miles from his home in
Clifton Forge, Virginia. He also asserted that he would not be
able to see his children if he accepted the job. Employer had
offered to bear the expenses of transportation and living
accommodations for McCormick if he accepted the job.
The commission granted employer's application to suspend
McCormick's benefits on the ground that he unjustifiably refused
selective employment. In so ruling, the commission found as
follows:
[T]he employer has exhausted its efforts to
locate suitable work closer to the claimant's
home, and it appears that no gainful
employment will be found unless the claimant
travels outside the Clifton Forge area.
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Moreover, the evidence does not show that the
travel would be physically detrimental to the
claimant, although he testified that he
sometimes feels uncomfortable travelling long
distance. His own testimony establishes that
he regularly travels every other weekend to
visit a son in Tennessee, and we are
unpersuaded that he is incapable of making
one weekly round trip to Harrisonburg. Also,
the claimant testified at the hearing that he
frequently worked at different times in
Virginia Beach, and on at least one occasion
worked a project there for eight months while
travelling home on weekends.
We find unpersuasive the claimant's
argument that the proffered employment will
result in a lifestyle change, but that would
be irrelevant in any event. We also do not
consider the claimant's argument that he
should not be compelled to relocate his
residence, since the facts here do not
require such action. Rather, the
accommodations arranged by the employer would
make consideration of that unnecessary.
The testimony of Richard Warren Fender, a vocational
rehabilitation consultant who assisted McCormick in finding
suitable employment, and Jerry Eugene Neff, employer's part
owner, provides credible evidence to support the commission's
findings. Based upon their testimony and the lack of a valid
excuse from McCormick for refusing the job, we cannot find that
the commission erred in granting employer's application to
suspend McCormick's benefits.
Accordingly, we affirm the commission's decision.
Affirmed.
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