Ronald Douglas Smith v. Kershaw Automotive ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Bray
Argued at Norfolk, Virginia
RONALD DOUGLAS SMITH
v. Record No. 1794-94-1 MEMORANDUM OPINION *
PER CURIAM
KERSHAW AUTOMOTIVE, ET AL. MAY 30, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Stuart A. Saunders (Saunders & DeSaulniers,
P.C., on brief), for appellant.
Jimese L. Pendergraft (Knight, Dudley, Dezern
& Clarke, P.L.L.C., on brief), for appellees.
Ronald Douglas Smith appeals a decision by the Virginia
Workers' Compensation Commission suspending his award of benefits
after finding that he unjustifiably refused selective employment
procured for him suitable to his capacity and that he failed to
cure such refusal. See Code § 65.2-510. We hold that the
commission's decision is well supported by the record and affirm
the suspension of Smith's benefits.
"[I]n order to support a finding [of refusal] based
upon Code [§ 65.2-510], the record must disclose (1) a
bona fide job offer suitable to the employee's
capacity; (2) procured for the employee by the
employer; and (3) an unjustified refusal by the
employee to accept the job." Furthermore, a person
receiving workers' compensation has a duty to cooperate
in efforts to get him a job he is capable of
performing.
Johnson v. City of Clifton Forge, 9 Va. App. 376, 378, 388 S.E.2d
654, 655 (1990) (citations omitted). On appeal, the commission's
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
findings of fact are conclusive and binding if based on credible
evidence. V.P.I. & State Univ. v. Wood, 5 Va. App. 72, 74, 360
S.E.2d 376, 377 (1987).
Credible evidence supports the commission's finding that
Smith received and accepted a valid offer of light duty work
which he later abandoned. The evidence further supports the
commission's finding that the employment procured for Smith by
his former employer was within his residual capacity. While
Smith maintains that he was required to perform tasks beyond his
capacity, the record supports the commission's finding that, in
fact, he was not because he was provided with a helper to assist
him and was told by his new employer that he did not have to do
any labor beyond what was prescribed to him by his physician.
The record also shows that Smith did not cooperate in
efforts to find him a job he was capable of performing. First,
Smith abandoned the job procured for him by his former employer
without any attempt to work things out. After his abandonment,
Smith, who claims his back had worsened due to his light duty
work, did not seek medical attention for more than two months.
Finally, Smith never sought the assistance of the Virginia
Employment Commission and failed to adequately market
his residual capacity.
Accordingly, we affirm the commission's decision.
Affirmed.
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