Billy R. Shea v. Transportation Unlimited ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Bumgardner
Argued at Richmond, Virginia
BILLY R. SHEA
MEMORANDUM OPINION* BY
v. Record No. 2532-99-2 JUDGE RUDOLPH BUMGARDNER, III
MAY 16, 2000
TRANSPORTATION UNLIMITED, INC. AND
LUMBERMEN'S UNDERWRITING ALLIANCE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Gregory O. Harbison (Geoffrey R. McDonald;
Geoffrey R. McDonald & Associates, P.C., on
brief), for appellant.
E. Scott Austin (Monica L. Taylor; Gentry,
Locke, Rakes & Moore, on brief), for
appellees.
Billy R. Shea appeals a decision of the Workers'
Compensation Commission that he unjustifiably refused selective
employment offered by Transportation Unlimited, Inc. The
employee contends the offer of selective employment was not bona
fide and his refusal to accept was justified. Finding no error,
we affirm.
On appeal, we view the evidence and all reasonable
inferences deducible from it 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). The factual
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
findings by the commission that are supported by credible
evidence are conclusive and binding upon this Court. See Code
§ 65.2-706; Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227,
229, 409 S.E.2d 824, 826 (1991).
The employer is a national company that leases drivers to
trucking companies. The employee suffered a compensable injury
to his back while working as a truck driver for the employer on
November 19, 1995. The employer compensated the employee for
temporary total disability benefits.
The employee was released to restricted work June 6, 1998.
The employer's industrial claims manager, Brian Beck, reviewed
the employee's job restrictions with its insurer and its account
representative in Virginia, Glen Pauley. Together they found a
"QAT supervisor" position for which the employee was suited.
The employee's physician approved the position for the employee.
QAT is the employer's only customer in Virginia. A "QAT
supervisor" worked for the employer supervising its drivers at
the QAT site in Petersburg but was not an employee of QAT. The
employer used the term, "QAT supervisor," as its internal
designation of the customer site at which its supervisor worked.
By letter dated July 27, 1998, Beck offered the "QAT
supervisor" position to the employee and advised him to contact
Pauley for his "work assignment and reporting details." The
employee called Pauley to report to work. At that time, Pauley
told the employee that he could not accept the job because he
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had been barred from QAT's property by a restraining order.
Shortly after his injury in 1995, the employee was convicted of
larceny of skids owned by QAT. The court barred him from QAT's
property.
The employee contends the employer offered him a job they
knew he could not accept. The deputy commissioner found the
employer's offer of selective employment was bona fide and
within the employee's residual capacity and concluded the
employee unjustifiably refused the offer. The commission
affirmed that decision.
To establish unjustified refusal of selective employment,
an employer must prove a bona fide offer within the employee's
residual capacity. See American Furniture Co. v. Doane, 230 Va.
39, 42, 334 S.E.2d 548, 550 (1985). Beck testified that the
employer had four other employees working as supervisors of its
drivers at the QAT site. Beck testified that he was unaware the
employee was barred from entering upon QAT's property. The QAT
supervisor position existed, was available, and was approved by
the employee's physician. Credible evidence supports the
commission's decision that the employer tendered an offer of
selective employment within the employee's residual capacity.
"[W]hen an employer invokes the bar of Code § 65.2-510 and
establishes that an injured employee has been offered employment
suitable to his residual capacity, the burden of persuasion
shifts to the employee to show justification for refusing the
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offer." Ballweg v. Crowder Contracting Co., 247 Va. 205, 209,
440 S.E.2d 613, 615 (1994) (citations omitted). An employee has
not been entitled to compensation benefits when his refusal is
based upon willful conduct after the work injury, and not his
physical disabilities related to the injury. See Johnson v.
City of Clifton Forge, 9 Va. App. 376, 377, 388 S.E.2d 654, 655
(1990) (en banc) (claimant's poor performance during interview,
which precluded offer of selective employment, amounted to
unjustified refusal); James v. Capitol Steel Constr. Co., 8 Va.
App. 512, 515, 382 S.E.2d 487, 489 (1989) (employee's refusal to
cooperate with placement efforts tantamount to refusal of
employer's offer).
Similarly, compensation benefits were terminated for
employees discharged for cause from selective employment. See
Marval Poultry Co. v. Johnson, 224 Va. 597, 601, 299 S.E.2d 343,
345 (1983) (employee discharged for dishonesty from employment
secured by employer forfeits benefits); Goodyear Tire & Rubber
Co. v. Watson, 219 Va. 830, 833, 252 S.E.2d 310, 312-13 (1979)
(employee justifiably discharged from employment secured by
employer for poor work performance is not entitled to benefits).
After his injury, the employee was convicted of stealing
from QAT and barred from its premises. Beck was unaware of the
restraining order. The employee, not the employer, was
responsible for the wage loss "properly attributable to his
wrongful act rather than his disability." Chesapeake & Potomac
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Telephone Co. v. Murphy, 12 Va. App. 633, 639-40, 406 S.E.2d
190, 193, aff'd en banc, 13 Va. App. 304, 411 S.E.2d 444 (1991).
See also Richfood, Inc. v. Williams, 20 Va. App. 404, 410, 457
S.E.2d 417, 420 (1995) (employee's failure to pass drug test
resulted in termination for cause and a forfeiture of benefits).
Cf. Food Lion, Inc. v. Newsome, 30 Va. App. 21, 24, 515 S.E.2d
317, 319 (1999) (employee not terminated for misconduct is
entitled to cure constructive refusal).
For these reasons, we affirm the commission's finding that
the employee unjustifiably refused selective employment.
Affirmed.
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