B&R Cleaning Co. v. Robert Lee Matherly ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
B & R CLEANING COMPANY AND
CINCINNATI CASUALTY COMPANY
v. Record No. 2500-96-3 MEMORANDUM OPINION *
PER CURIAM
ROBERT LEE MATHERLY MARCH 4, 1997
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Martha White Medley; Daniel, Vaughan, Medley &
Smitherman, P.C., on brief), for appellants.
(Rhonda L. Overstreet; Lumsden & Overstreet,
on brief), for appellee.
B & R Cleaning Company and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission (commission) erred in finding that Robert
Lee Matherly (claimant) did not unjustifiably refuse 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. Rule
5A:27.
On appellate review, we construe the evidence in the light
most favorable to the party prevailing below. 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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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 if supported by credible evidence. Id. at 515,
382 S.E.2d at 488.
The unrebutted evidence established that Dr. Murray E.
Joiner, Jr. released claimant to full duty as a janitor, but
restricted claimant to lifting no more than thirty-five to forty
pounds and to no prolonged or repetitive bending. The job
description submitted by employer to Dr. Joiner and approved by
him required claimant to work with his body bent over at the
waist on a frequent basis and required him to lift up to
thirty-five pounds. Claimant testified that the job required
frequent bending and lifting up to seventy-five pounds.
Based upon this record, the commission was entitled to give
little or no weight to Dr. Joiner's approval of the job
description. The commission's finding that the claimant's
pre-injury work exceeded Dr. Joiner's restrictions, particularly
as to prolonged and repetitive bending, is supported by credible
evidence. In making its finding, the commission considered
claimant's testimony and the size of the barrels claimant was
required to lift. Because employer failed to prove that the
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selective employment was suitable to claimant's residual work
capacity, we cannot find that the commission erred in holding
that claimant did not unjustifiably refuse the offer of selective
employment.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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