Buffalo Shook Company, Inc. v. Pryor, Sr. ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
BUFFALO SHOOK COMPANY, INC.,
WOOD PRODUCTS OF VIRGINIA GROUP
SELF-INSURANCE ASSOCIATION AND
TRIGON ADMINISTRATORS
MEMORANDUM OPINION *
v. Record No. 2593-97-2 PER CURIAM
MARCH 31, 1998
JAMES A. PRYOR, SR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(R. Temple Mayo; Taylor & Walker, on brief),
for appellants.
(Robert L. Flax, on brief), for appellee.
Buffalo Shook Co., Inc. and its insurers (hereinafter
referred to as "employer") contend that the Workers' Compensation
Commission ("commission") erred in finding that employer failed
to prove that James A. Pryor, Sr. ("claimant") unjustifiably
refused employer's offer of selective employment. 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.
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). "To
support a finding of refusal of selective employment 'the record
must disclose (1) a bona fide job offer suitable to the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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)).
In holding that employer's evidence failed to prove that its
offer of selective employment was suitable to claimant's residual
capacity, the commission found as follows:
Dr. [Douglas A.] Wayne specifically
recommended against bending. The claimant
credibly testified that the small wood parts
processor job required bending, and Mr. [G.
Nelson] Wilson [, employer's production
manager,] conceded that some bending is
required to perform the job. As the pile of
wood on the pallet got lower, the claimant
had to bend to pick up the next piece of
wood. Thus, the claimant did not
unjustifiably refuse a light duty job that
was within his physical capabilities.
Moreover, the claimant demonstrated a good
faith effort to perform the job but his pain
worsened. The best proof of whether or not a
job is within the employee's capabilities is
a good faith effort to perform the job. Dr.
Wayne has observed that the claimant is not a
symptom magnifier.
The commission's findings are amply supported by the record.
Based upon Dr. Wayne's restriction against bending, the
testimony of claimant and Wilson, which established that the job
required bending, and claimant's unsuccessful good faith attempt
to perform the light duty job, we cannot say as a matter of law
that
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employer proved that claimant unjustifiably refused selective
employment. Accordingly, we affirm the commission's decision.
Affirmed.
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