Clarence W. Truax,Jr. v. William A. Hazel, Inc.,etc ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
CLARENCE W. TRUAX, JR.
MEMORANDUM OPINION*
v. Record No. 0137-00-4 PER CURIAM
JULY 18, 2000
WILLIAM A. HAZEL, INC. AND
ROYAL INSURANCE COMPANY OF AMERICA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Clarence W. Truax, Jr., pro se, on brief).
(Cathleen P. Welsh; Wharton, Aldhizer &
Weaver, P.L.C., on brief), for appellees.
Clarence W. Truax, Jr. (claimant) contends that the
Workers' Compensation Commission (commission) erred in finding
that he (1) unjustifiably refused selective employment offered
to him by William A. Hazel, Inc. (employer) on September 1,
1998; (2) unjustifiably refused necessary medical treatment by
Dr. Roger V. Gisolfi on September 29, 1998; and (3) was not
entitled to a change in treating physicians. 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. See Rule 5A:27.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I.
"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.'" James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 489 (1989)
(quoting Ellerson v. W.O. Grubb Steel Erection Co., 1 Va. App.
97, 98, 335 S.E.2d 379, 380 (1985)). Factual findings made by
the commission will be upheld on appeal if supported by credible
evidence. See id. at 515, 382 S.E.2d at 488.
"When the employer establishes that selective employment
was offered to an employee that was within the employee's
capacity to work, the employee bears the burden of establishing
justification for refusing the offered employment." Food Lion,
Inc. v. Lee, 16 Va. App. 616, 619, 431 S.E.2d 342, 344 (1993).
"To support a finding of justification to refuse suitable
selective employment, 'the reasons advanced must be such that a
reasonable person desirous of employment would have refused the
offered work.'" Id. (citation omitted). Unless we can say as a
matter of law that claimant's evidence sustained his burden of
proof, the commission's findings are binding and conclusive upon
us. See Tomko v. Michael's Plastering. Co., 210 Va. 697, 699,
173 S.E.2d 833, 835 (1970).
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On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Here, it was undisputed that claimant's treating physician, Dr.
Richard Gisolfi, released claimant to light-duty work effective
August 24, 1998, with no restrictions upon his ability to drive.
In addition, claimant admitted that employer contacted him and
offered him selective employment in its Chantilly, Virginia
office to begin on September 1, 1998. Claimant failed to report
for the job. Before the commission, claimant did not dispute
that the selective employment was within his restrictions.
However, he contended that he was justified in refusing the job
because he could not drive to work due to his pain. However,
the evidence proved that Dr. Gisolfi made it clear at the time
of claimant's refusal that claimant was physically capable of
driving to work and that his medication would not prohibit him
from driving.
The medical records and Dr. Gisolfi's opinions provide
credible evidence to support the commission's finding that the
selective employment offered to claimant was within his physical
capacity. Moreover, based upon this record, we cannot find as a
matter of law that claimant's evidence proved that he was
justified in refusing such employment.
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II.
The evidence proved that claimant knew he had an
appointment with Dr. Gisolfi on September 29, 1998, which he
failed to attend. Claimant's reason for failing to attend the
appointment, that he could not drive, was not supported by his
treating physician, who opined that there was no medical reason
why claimant could not drive to the appointment. Moreover,
although employer indicated that it would not provide
transportation for claimant to the appointment, there was no
evidence that employer refused to pay claimant for his
transportation costs to attend the appointment, its only
obligation under the Workers' Compensation Act and the
circumstances of this case. The evidence showed that claimant
never inquired of employer whether it would reimburse his
transportation costs.
Based upon this record, we cannot find as a matter of law
that claimant proved he was justified in failing to attend the
appointment with Dr. Gisolfi.
III.
The deputy commissioner denied claimant's request for a
change in treating physicians. Claimant did not argue on review
before the full commission that the deputy commissioner erred in
that determination. Decisions of a deputy commissioner that are
not reviewed by the full commission cannot be brought before
this Court. See Southwest Architectural Prods., Inc. v. Smith,
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4 Va. App. 474, 478, 358 S.E.2d 745, 747 (1987); Rule 5A:18.
Accordingly, we cannot address this issue on appeal.
For these reasons, we affirm the commission's decision.
Affirmed.
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