Joe L. Dodson v. Haymes Brothers, Inc.

COURT OF APPEALS OF VIRGINIA
Present: Judges Koontz, Bray and Annunziata
JOE L. DODSON
v. Record No. 0308-95-2 MEMORANDUM OPINION *
PER CURIAM
HAYMES BROTHERS, INC. AUGUST 1, 1995
AND
BITUMINOUS CASUALTY CORPORATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(William R. Keown; Traylor & Morris, on brief), for
appellant.
(Ralph L. Whitt, Jr.; Jennifer G. Marwitz; Sands,
Anderson, Marks & Miller, on brief), for appellees.
Joe L. Dodson (claimant) contends that the Workers'
Compensation Commission erred in (1) finding that he
unjustifiably refused selective employment offered to him by
Haymes Brothers, Inc. ("employer"); and (2) considering the May
3, 1994 report of Dr. Robert O. Fitch, the treating orthopedic
surgeon. 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 appeal, we view the evidence in the light most favorable
to the prevailing party 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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
must disclose (1) a bona fide job offer suitable to 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)).
The claimant does not dispute that a bona fide offer of
light duty work was made to him by the employer in April and June
1993, nor does he dispute that he refused the offer. Rather, he
contends that the commission erred in accepting the opinion of
the treating physician, Dr. Fitch, who opined that the claimant
was able to perform the job offered by employer, and in rejecting
the opinions of Drs. Alton F. Gross and John P. Franko, who
opined that the claimant was totally disabled and not capable of
even minor movements.
"[I]t is fundamental that a finding of fact made by the
Commission is conclusive and binding upon this court on review.
A question raised by conflicting medical opinion is a question of
fact." Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d
532, 533 (1986). In light of the surveillance videotape and the
testimony of the private investigator, the commission was
entitled to discount the opinions rendered by Drs. Gross and
Franko. Moreover, the reports and opinions of Dr. Fitch provide
credible evidence to support the commission's finding that the
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work offered by the employer in April and June 1993 was within
the claimant's residual capacity and that he was not justified in
refusing it. "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 Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
On review before the full commission, the claimant did not
raise the issue of the deputy commissioner's consideration of the
May 3, 1994 report of Dr. Fitch, therefore we will not address
this issue for the first time on appeal. See Green v. Warwick
Plumbing & Heating Corp., 5 Va. App. 409, 413, 364 S.E.2d 4, 6
(1988) (issue not disputed before commission will not be
considered on appeal); Rule 5A:18.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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