Metro Bldg., etc. v. Robert C. Christianson

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Annunziata and
Senior Judge Duff
Argued at Alexandria, Virginia
METRO BUILDING SUPPLY, INC., ET AL.
v. Record No. 1946-95-4 MEMORANDUM OPINION * BY
CHIEF JUDGE NORMAN K. MOON
ROBERT CHARLES CHRISTIANSEN, JR. MARCH 5, 1996
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Joseph C. Veith, III (Montedonico, Hamilton &
Altman, P.C., on briefs), for appellants.
Craig A. Brown (Ashcraft & Gerel, on brief),
for appellee.
Metro Building Supply, Inc. appeals the commission's ruling
that Robert C. Christiansen, Jr., cured his earlier refusal of
light duty employment through acceptance of a comparable job with
Professional Boiler Works. We affirm the commission's ruling.
The issue in this case is cure of an unjustified refusal of
selective employment. In Christiansen v. Metro Building Supply,
Inc., 18 Va. App. 721, 447 S.E.2d 519 (1994), we held that
Christiansen could cure an unjustified refusal to accept
selective employment at Metro Building Supply if he found and
accepted a job comparable to the one he had refused. We also
found that as a matter of law, Christiansen had not cured his
unjustified refusal through acceptance of a job at Professional
Boiler Works. This ruling was based on the apparently
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
substantial discrepancy between the salary at the light duty job
that Christiansen refused and his earnings at Professional Boiler
Works.
On rehearing, we determined that our assumptions concerning
the earnings at the two jobs were inaccurate, and that the
earnings were issues of fact that should be determined by the
commission. We therefore remanded the case to the commission for
findings of fact and conclusions of law as to whether under
Virginia Wayside Furniture, Inc. v. Burnette, 17 Va. App. 74, 435
S.E.2d 156 (1993), Christiansen had cured his prior justified
refusal of selective employment. Christiansen v. Metro Building
Supply, 19 Va. App. 513, 453 S.E.2d 302 (1995).
On remand, the commission did not take new evidence, instead
deciding the issue on the record before it. In the opinion on
reconsideration, this Court stated that it could not decide the
issue as a matter of law "on this record". Based on this
statement, Metro Building Supply argues that the commission erred
in not supplementing the record. However, the Court did not
require the commission to take more evidence. The Court
determined that it could not, on review, make the factual
findings necessary to decide the issue, and remanded the case so
the commission could do so. The commission has complied with the
Court's mandate.
Whether an employee has cured an unjustified refusal of
selective employment by securing a comparable job elsewhere is
determined by an objective standard of reasonableness and depends
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on the particular circumstances of each situation. Virginia
Wayside Furniture, 17 Va. App. at 79; 435 S.E.2d at 160. On
review, we view the evidence on this question in the light most
favorable to Christiansen, the prevailing party below. National
Linen Service v. McGuinn, 8 Va. App. 267, 270, 380 S.E.2d 31, 33
(1989). Where, as here, there is no conflict in the evidence,
the question of sufficiency of the evidence is one of law. Id.
The commission determined that Christiansen had earned $380
per week in the light duty job at Metro Building Supply. Metro
Building Supply does not dispute this finding. It also found
that Christiansen's new light duty job would pay an average wage
of $340 to $380 per week. The commission went on to state that
when the hearing was held, Christiansen's time at the new job had
been too brief to establish an average weekly wage. Nonetheless,
in the commission's view the earnings in this job were close
enough to that of the job he had abandoned to establish a cure of
the prior unjustified refusal.
The commission's findings were based on pay stub information
and testimony concerning Christiansen's earnings for his first
two weeks on the job with Professional Boiler Works. This
evidence showed a guaranteed wage of $340 per week, i.e., 40
hours per week at $8.50 per hour, with the possibility of "an
hour or two" of overtime. In his first week on the job,
Christiansen earned $352.75, including overtime. These figures,
which the parties do not dispute, establish the general range of
earnings in the new job. They do not, however, support the
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commission's finding that the upper bound of that range was $380
per week. Allowing for the maximum overtime supported by the
evidence, the most Christiansen could make per week is $365.50.
Thus, undisputed evidence shows that Christiansen's current
job has earnings that are between 10.5 % and 4% less than the job
he unjustifiably refused. Viewing the evidence in the light most
favorable to the claimant, we hold that credible evidence
supported the commission's finding that Christiansen has cured
his earlier unjustified refusal of selective employment. The
wages of the two jobs need not be identical, but merely
comparable. Virginia Wayside Furniture, 17 Va. App. at 79-80,
435 S.E.2d at 160. Therefore, the commission did not err in
ruling that the claimant's job at Professional Boiler Works meets
this standard.
For these reasons, the decision of the commission is
affirmed.
Affirmed.
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