Jones Chemical, Inc v. Jack Dempsy Parson ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Senior Judge Hodges
Argued at Alexandria, Virginia
JONES CHEMICAL, INC.
AND
ST. PAUL FIRE & MARINE INSURANCE COMPANY
MEMORANDUM OPINION * BY
v. Record No. 1248-96-4 JUDGE WILLIAM H. HODGES
APRIL 1, 1997
JACK DEMPSY PARSON, SR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
R. Ferrell Newman (Thompson, Smithers,
Newman & Wade, on brief), for appellants.
Michael W. Heaviside (Lawrence J. Pascal;
Ashcraft & Gerel, on brief), for appellee.
Jones Chemical, Inc. and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission ("commission") erred in finding that Jack
Dempsey Parson, Sr. ("claimant") cured his unjustified refusal of
selective employment offered by employer. We find as a matter of
law that no credible evidence supports the commission's finding
that claimant's job search efforts were sufficient to cure his
unjustified refusal of selective employment. Accordingly, we
reverse the commission's decision.
On June 2, 1995, claimant sustained compensable injuries to
his left ankle, hip, and back. Pursuant to an agreement of the
parties, the commission entered an award on July 14, 1995 for
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
temporary total disability benefits beginning June 10, 1995. On
August 21, 1995, employer filed a change in condition
application, alleging that on August 8, 1995, claimant
unjustifiably refused selective employment offered by employer.
On August 3, 1995, Dr. Andre Eglevsky, Parson's treating
physician, opined that claimant could perform a light-duty
position proposed by employer, which required claimant to handle
and clean one-pound valves and allowed him to sit or stand. Dr.
Eglevsky noted that claimant vehemently objected to returning to
work of any kind. On August 4, 1995, Dr. Eglevsky approved a job
description submitted to him by employer for claimant to work as
a valve rebuilder. The position required that claimant
alternatively sit, stand, and walk during an eight-hour period,
frequently squat, frequently use his hands to grasp and
manipulate items, and lift no more than twenty-five pounds. The
position involved no bending, crawling or climbing.
On August 7, 1995, employer offered claimant the valve
rebuilder job approved by Dr. Eglevsky. Claimant called employer
the next morning, and refused to report to work because he was in
too much pain. Claimant reported for work the next day, but
employer sent him home because claimant's supervisor was not
available. Claimant returned to work on August 10, 1995. Before
starting work, claimant told his supervisor that he was in pain.
Claimant left employer's premises after working approximately
two hours, claiming that he could not continue due to increasing
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pain. Claimant returned to Dr. Eglevsky that afternoon. Dr.
Eglevsky noted a normal examination, and he reported that no
objective evidence substantiated claimant's complaints of
discomfort. Dr. Eglevsky opined that claimant's "subjective
complaints of pain should not interfere with his ability to
return to light work that was prescribed."
Based upon this record, the commission ruled that claimant
had unjustifiably refused light-duty work offered by employer.
The commission found that the evidence showed that claimant had
magnified his symptoms, and that he had not made a bona fide
attempt to perform the light-duty job. Claimant did not appeal
that finding. Therefore, it is binding and conclusive upon us on
appeal. The commission suspended claimant's outstanding award as
of August 10, 1995. However, the commission reinstated
claimant's award of disability benefits beginning August 25,
1995, finding that he cured his unjustified refusal of selective
employment by adequately marketing his residual work capacity
after that date.
The standard of review applicable to this case is as
follows:
This appeal does not present a case of
conflicting evidence or a dispute concerning
the commission's findings of fact. When the
issue is the sufficiency of the evidence and
there is no conflict in the evidence, the
issue is purely a question of law. This
Court is not bound by the legal
determinations made by the commission. "[W]e
must inquire to determine if the correct
legal conclusion has been reached."
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Cibula v. Allied Fibers & Plastics, 14 Va. App. 319, 324, 416
S.E.2d 708, 711 (1992) (quoting City of Norfolk v. Bennett, 205
Va. 877, 880, 140 S.E.2d 655, 657 (1965) (citations omitted)),
aff'd, 245 Va. 337, 428 S.E.2d 905 (1993).
The undisputed evidence showed that claimant, who was
forty-two years old as of the hearing date, had an eleventh grade
education. He had served in the military. In addition to his
eight years of work for employer, he had worked as a cook. On
August 25, 1995, claimant registered with the Virginia Employment
Commission ("VEC"). He also visited the VEC on October 17, 1995.
Claimant submitted a list of forty-one job contacts he made
between August 26, 1995 and December 20, 1995, the hearing date.
Out of the five job contacts claimant made in August, two were
for laborer positions and one was for a warehouse position. The
job duties of these three positions, from all indications, would
have entailed duties far in excess of claimant's residual work
capacity.
During September 1995, claimant made sixteen contacts with
potential employers. Two of these contacts were for laborer
positions and four contacts were for stock clerk positions.
Thus, six out of the sixteen contacts claimant made in September
entailed job duties which would have apparently exceeded his
residual work capacity. Three of the businesses claimant
contacted twice during September, and two of the businesses he
had previously contacted in August.
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During October 1995, claimant made only four contacts with
prospective employers. Two of the job contacts were for laborer
positions and the other two were for stock clerk positions, all
of which, from all appearances, would have entailed job duties
exceeding claimant's residual work capacity. All four of the
businesses claimant contacted in October were ones that he had
previously contacted in August or September.
During November 1995, claimant again made only four contacts
with prospective employers. One of the job contacts was for a
laborer position, and claimant had previously contacted three of
the businesses in September. Claimant made no job contacts after
November 8, 1995 until December 19, 1995, the day before the
hearing.
On December 19, 1995, claimant made four contacts with
prospective employers. Two of these contacts were for stock
clerk jobs, and claimant had previously contacted two of the
businesses in September. On December 20, 1995, the day of the
hearing, claimant allegedly made eight job contacts and contacted
a rehabilitation counselor between the opening of business and
2:00 p.m. One of the jobs was for a laborer position, and
claimant had previously contacted at least one of the businesses.
Finally, we note that the list appears to contain the
handwriting of several different individuals.
Based upon all of these facts, we find that claimant's list
of alleged job contacts is inherently incredible. Absent the
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list, the evidence is not sufficient to prove that claimant made
a good faith effort to market his residual work capacity.
"[I]f disability benefits are suspended because an employee
unjustifiably refuses selective employment offered by the
employer, the employee, nevertheless, will be entitled to a
resumption of disability benefits once he has procured comparable
employment suitable for his disability or has made a good faith
effort to obtain suitable employment." Virginia Wayside
Furniture, Inc. v. Burnette, 17 Va. App. 74, 79, 435 S.E.2d 156,
159 (1993).
"What constitutes a reasonable marketing effort depends upon
the facts and circumstances of each case." The Greif Companies
v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318 (1993). This
Court has discussed factors which the commission should consider
in deciding whether a claimant has made reasonable good faith
efforts to market his remaining capacity:
(1) the nature and extent of employee's
disability; (2) the employee's training, age,
experience, and education; (3) the nature and
extent of employee's job search; (4) the
employee's intent in conducting his job
search; (5) the availability of jobs in the
area suitable for the employee, considering
his disability; and (6) any other matter
affecting employee's capacity to find
suitable employment.
National Linen Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d
31, 34 (1989) (footnotes omitted).
Once claimant unjustifiably refused the light-duty job
offered to him by employer, his wage loss was attributable to his
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refusal and not to his injury. This fact must be taken into
account in evaluating the claimant's marketing efforts. In light
of the lack of credible evidence showing claimant's marketing
efforts, claimant's age, education, and previous work experience,
Dr. Eglevsky's unequivocal opinion that claimant could perform
light work, and the lack of any objective evidence of a disabling
condition, we find as a matter of law that claimant's evidence
did not sustain his burden of proving that he made a good faith
marketing effort sufficient to cure his unjustified refusal of
light-duty work offered by employer.
For these reasons, we reverse the commission's decision.
Reversed.
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