Houlihan's t/a Darryl's Rest. v. Slater ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
HOULIHAN'S T/A DARRYL'S RESTAURANT AND
RELIANCE NATIONAL INDEMNITY COMPANY
MEMORANDUM OPINION *
v. Record No. 1245-98-4 PER CURIAM
SEPTEMBER 15, 1998
JANE SLATER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Dawn M. Peters; Breeden, MacMillan & Green,
on briefs), for appellants. Appellants
submitting on brief.
(Manuel R. Geraldo; Robinson & Geraldo, on
brief), for appellee. Appellee submitting on
brief.
Houlihan's t/a Darryl's Restaurant and its insurer
(hereinafter referred to as "employer") appeal a decision of the
Workers' Compensation Commission ("commission") awarding Jane
Slater compensation for various time periods and holding employer
responsible for certain medical expenses. Employer contends that
the commission erred in finding that (1) Slater did not
unjustifiably refuse selective employment located in Hampton,
Virginia after she relocated to the Washington, D.C. area; and
(2) employer was responsible for the cost of medical treatment
rendered to Slater by Drs. Hampton Jackson and William Dorn.
Finding no error, we affirm the commission's decision.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
I. Selective Employment
"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 selective employment, 'the
reasons advanced must be such that a reasonable person desirous
of employment would have refused the offered work.'" Id.(quoting Johnson v. Virginia Employment Comm'n, 8 Va. App. 441,
452, 382 S.E.2d 476, 481 (1989)). Furthermore, "[j]ustification
to refuse an offer of selective employment 'may arise from
factors totally independent of those criteria used to determine
whether a job is suitable to a particular employee.'" Id.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). "'If
there is evidence, or reasonable inferences can be drawn from the
evidence, to support the commission's findings, they will not be
disturbed on review, even though there is evidence in the record
to support a contrary finding.'" Food Lion, 16 Va. App. at 619,
431 S.E.2d at 344 (quoting Morris v. Badger Powhatan/Figgie
Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986)).
The commission made the following findings:
The light-duty job which was purportedly
offered [Slater] on January 21, 1997 was a
position at [employer's] Hampton location,
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and came at a time when she had already
relocated to the District of Columbia.
[Employer's] protestations notwithstanding,
an offer of selective employment cannot "be
considered in a vacuum," and, instead, "all
relevant factors must be" taken into account,
"including travel distance." . . . "[T]he Act
does not require that an employee move his"
or her "residence to accept selective
employment." Such a draconian requirement
"would contravene both the intent of" the Act
"as well as our prior interpretations" of
Virginia Code § 65.2-510 concerning selective
employment. Accordingly, and even apart from
the question of whether the light-duty job
was approved in advance by a physician, it
was unreasonable for [employer] to expect
[Slater] to accept a position hours away from
her new residence . . . .
(Citations omitted.).
The record contains credible evidence to support the
commission's findings. As fact finder, the commission was
entitled to accept Slater's testimony and to reject the testimony
of employer's representative. Slater's testimony established
that she moved to the Washington, D.C. area to join her husband
when he became ill. She did so because she could not afford to
maintain her Virginia residence and to travel to and from the
Washington, D.C. area to care for her husband. Credible evidence
also established that prior to offering Slater selective
employment in January 1997, employer knew that Slater had moved
to the Washington, D.C. area during the summer of 1996.
Under these circumstances, we conclude that Slater
established "'real and substantial reasons for [her] refusal' to
accept" employer's offer of selective employment. Food Lion, 16
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Va. App. at 620, 431 S.E.2d at 345 (quoting Johnson, 8 Va. App.
at 452, 382 S.E.2d at 481). Accordingly, the commission did not
err in finding that Slater did not unjustifiably refuse selective
employment. 1
II. Medical Treatment
"Whether the employer is responsible for medical
expenses . . . depends upon: (1) whether the medical service was
causally related to the industrial injury; (2) whether such other
medical attention was necessary; and (3) whether the treating
physician made a referral . . . [of] the patient." Volvo White
Truck Corp. v. Hedge, 1 Va. App. 195, 199, 336 S.E.2d 903, 906
(1985).
In holding employer responsible for the cost of medical
treatment rendered to Slater by Drs. Jackson and Dorn, the
commission found as follows:
Finally, [Slater], who eventually was
left to fend for herself, had no choice but
to arrange for her own treatment following
her relocation. [Employer] provided no new
panel, and it was unreasonable to expect
[Slater] to travel excessive distances in
order to secure care with physicians
previously involved. Accordingly, the cost
of [Slater's] treatment with Dr. Jackson, as
well as with Dr. Dorn, Dr. Jackson's
designee, is [employer's] responsibility.
Credible evidence supports the commission's findings.
1
The full commission did not address whether the selective
employment offered to Slater by employer was within Slater's
capacity to work. Because of our holding on the justification
issue, we also find it unnecessary to address that issue.
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Slater's testimony proved that employer did not offer her a panel
of physicians. Moreover, when Slater moved to the Washington,
D.C. area, employer's representative instructed her to locate a
doctor in Maryland and to have her treating physician,
Dr. John A. Cardea, make a referral. Slater followed those
instructions and was referred to Dr. Jackson. Dr. Jackson's
medical records establish a causal connection between Slater's
compensable industrial accident and the necessary medical
treatment rendered by him and Dr. Dorn. "The fact that there is
contrary evidence in the record is of no consequence if there is
credible evidence to support the commission's finding." Wagner
Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35
(1991).
For these reasons, we affirm the commission's decision.
Affirmed.
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