Newport News Shipbuilding & Dry Dock Co. v. Barnes

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons ∗ and Frank
NEWPORT NEWS SHIPBUILDING AND
DRY DOCK COMPANY
OPINION BY
v. Record No. 1302-99-1 JUDGE JERE M. H. WILLIS, JR.
MARCH 28, 2000
MICHELLE BARNES
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Jonathan H. Walker; Mason, Cowardin & Mason,
on brief), for appellant. Appellant
submitting on brief.
(Robert E. Walsh; Rutter, Walsh, Mills &
Rutter, L.L.P., on brief), for appellee.
Appellee submitting on brief.
On appeal from a decision of the Workers' Compensation
Commission awarding Michelle Barnes benefits for a knee injury,
Newport News Shipbuilding and Dry Dock Company ("Newport News")
contends (1) that the evidence was insufficient to support a
finding that the injury was compensable, (2) that the commission
erred in finding that Barnes gave her supervisor notice of the
injury, and (3) that the commission erred in holding that Code
§ 65.2-510(C) did not operate to deny Barnes benefits. For the
∗
Justice Lemons participated in the decision of this case
prior to his investiture as a Justice of the Supreme Court of
Virginia.
reasons set forth herein, we reverse the judgment of the
commission and remand the case to it.
I. Sufficiency of the Evidence
Newport News contends that the evidence was insufficient to
support the finding that Barnes sustained a compensable injury.
Arguing that at most she suffered cumulative trauma, Newport
News asserts that the evidence that Barnes was involved in any
type of accident on November 13, 1989 is incredible as a matter
of law.
"On appellate review, [the court will] construe the
evidence in the light most favorable to the party prevailing
below." States Roofing Corp. v. Bush Constr. Corp., 15 Va. App.
613, 616, 426 S.E.2d 124, 126 (1993). "In determining whether
credible evidence exists, the appellate court does not retry the
facts, reweigh the preponderance of the evidence, or make its
own determination of the credibility of the witnesses." Wagner
Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35
(1991).
While the record contains discrepancies as to the nature of
the injury, sufficient evidence supports the finding that Barnes
suffered the injury when she slipped and landed hard on both
knees. "[I]t is fundamental that a finding of fact made by the
[c]ommission is conclusive and binding upon this court on
review. A question raised by conflicting medical opinion is a
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question of fact." Commonwealth v. Powell, 2 Va. App. 712, 714,
347 S.E.2d 532, 533 (1986).
Both Barnes and Cleo Hayes described Barnes' fall and
injury. The commission heard evidence that Hayes was a
disgruntled former employee and that Barnes' supervisor had no
recollection of the accident. It was the commission's duty and
function to weigh the evidence and to determine the credibility
of the witnesses. It chose to believe Barnes and the witnesses
supporting her account of the injury. Because credible evidence
supports the commission's finding, we will not overturn that
finding on appeal.
II. Notice Requirement of Code § 65.2-600
Newport News next contends that the commission erred in
finding that Barnes gave the required notice of her injury.
Code § 65.2-600 provides that:
Every injured employee or his
representative shall immediately on the
occurrence of an accident or as soon
thereafter as practicable, give or cause to
be given to the employer a written notice of
the accident.
Code § 65.2-600(A).
Lack of written notice, however, does not bar recovery if
the employer has actual notice of the injury and is not
prejudiced. See Code § 65.2-600(E). "'[W]here there was no
written notice but . . . where a foreman or superior officer had
actual knowledge of the . . . accident or death within a
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reasonable time after the accident or death occurred and no
prejudice to the employer's rights was shown, this was
sufficient notice under this provision of the statute.'" Kane
Plumbing v. Small, 7 Va. App. 132, 138, 371 S.E.2d 828, 832
(1988) (citation omitted) (decided under former Code § 65.1-85).
The commission found that Barnes' supervisor, Leon Callis,
had actual knowledge of the accident and the ensuing injury.
Callis testified that he did not recall any accident report by
Barnes. However, Barnes testified that she told him about the
injury. "The fact that there is contrary evidence in the record
is of no consequence if there is credible evidence to support
the commission's finding." Wagner, 12 Va. App. at 894, 407
S.E.2d at 35. Furthermore, the record discloses no prejudice to
Newport News resulting from Barnes' failure to give written
notice of the accident and injury.
III. Refusal of Selective Employment
Newport News asserts that Barnes unjustifiably refused
employment and did not cure that refusal within six months. It
contends that Code § 65.2-510(C) bars her entitlement to
benefits.
Barnes could not return to work after her various knee
surgeries. Her treating physician did not clear her even for
light work associated with her cleaning job at Newport News.
Roena Hamilton, a vocational rehabilitation counselor, helped
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Barnes prepare a resume and obtained for her an interview on
July 28, 1995 for a secretarial position. Barnes, however,
missed the interview, explaining that she had attended a family
funeral. Barnes finally accepted a new job in January, 1997.
Newport News argues that Barnes' failure to attend the July
28, 1995 job interview was an unjustified refusal of selective
employment which she failed to cure within six months, and that
Code § 65.2-510(C) bars her entitlement to benefits. Citing
Selman v. McGuire Group Services, Inc., V.W.C. File No.
156-44-63 (January 16, 1998), the commission held "that Section
65.2-510(C) has no application here, where the employer merely
alleges that the claimant failed to cooperate with the
vocational rehabilitation efforts of the employer. There is no
evidence that the employer ever procured a job suitable to the
claimant's residual capacity or that Barnes ever refused such a
job offer." The commission erred.
In Johnson v. City of Clifton Forge, 7 Va. App. 538, 375
S.E.2d 540 (1989), we considered whether negative conduct by a
claimant at a new job interview, such that it prevented the
offer of a new job, could constitute an unjustified refusal of
selective employment, invoking former Code § 65.1-63 (denying
compensation to an injured employee who unjustifiably refuses
employment procured for him suitable to his capacity). We held:
Code § 65.1-63 would be rendered meaningless
if an employee could defeat its provisions
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by purposefully conducting himself in an
interview so as to insure that an employer
would not make an offer of employment. In
addition, where an employee had undergone
vocational rehabilitation training pursuant
to Code § 65.1-88, this Code Section also
could be rendered meaningless and
ineffective if the employee could ultimately
defeat selective employment by his negative
conduct at a job interview. Finally, the
commission has the ability to weigh the
evidence in a given case to determine
whether an employee has purposely conducted
a job interview to prevent an offer and
ultimate employment from being procured by
the employer. For these reasons, we hold
where the commission determines on
sufficient credible evidence that an
employee unjustifiably refuses to cooperate
with the placement efforts of the employer,
such conduct is tantamount to an unjustified
refusal of selective employment under Code
§ 65.1-63 and an actual offer of employment
is not a prerequisite to a finding of such
refusal.
Id. at 547, 375 S.E.2d at 546.
We hold that Code § 65.2-510 and the rationale of Johnson
apply to this case. However, because the commission did not
consider, on their merits, the nature and prospects of the job
interview, the justification asserted by Barnes for missing the
interview, and whether her missing the interview amounted to an
unjustified refusal of procured employment under the holding in
Johnson, we remand this case to the commission for determination
of the merits of those issues.
The judgment of the commission is reversed and remanded.
Reversed and remanded.
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