                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Annunziata, Agee and Senior Judge Coleman


PRO TEMPS TEMPORARY SERVICE AND
 AMERICAN ALTERNATIVE INSURANCE COMPANY
                                             MEMORANDUM OPINION*
v.   Record No. 2021-01-1                         PER CURIAM
                                               DECEMBER 11, 2001
DANIEL P. CARNER


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Todd G. Patrick; Mark S. Davis; Carr &
             Porter, LLC, on briefs), for appellants.

             (John J. Flora, III; Bennett and Zydron,
             P.C., on brief), for appellee.


     Pro Temps Temporary Service and its insurer (hereinafter

referred to as "employer") contend that the Workers'

Compensation Commission erred in finding that Daniel P. Carner

(claimant) proved that he (1) did not unjustifiably refuse

selective employment offered in October 2000; (2) cured his May

10, 2000 unjustified refusal of medical treatment on July 11,

2000; and (3) had no duty to market his residual work capacity.

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.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     On appeal, we view the evidence in the light most favorable

to the prevailing party below.     See R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

Factual findings made by the commission will be upheld on appeal

if supported by credible evidence.     See James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

              Unjustified Refusal of Selective Employment

     "To support a finding of refusal of selective employment

'the record 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.'"     Id. at 515, 382 S.E.2d at 489

(quoting Ellerson v. W.O. Grubb Steel Erection Co., 1 Va. App.

97, 98, 335 S.E.2d 379, 380 (1985)).

     In ruling that claimant did not unjustifiably refuse

employer's offer of selective employment, the commission found

as follows:

               We next turn to the deputy
          commissioner's decision that the claimant
          did not unjustifiably refuse an offer of
          selective employment in October 2000. This
          finding was specifically predicated on the
          deputy commissioner's finding that the
          claimant was not "properly released to light
          duty," and thus any offer of selective
          employment was inappropriate. The deputy
          commissioner based this finding on evidence
          of psychiatric treatment for "depression
          related to the work injury." There was no
          medical release, however, concerning the
          claimant's psychiatric condition.
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               The employer did not address on Review
          the deputy commissioner's finding concerning
          the absence of an appropriate release to
          light duty. Instead, the employer focused
          on the claimant's physical restrictions, and
          how they compared with the proffered
          employment. We believe the deputy
          commissioner correctly determined that the
          claimant was not properly released to light
          duty, and thus was justified in refusing the
          proffered employment.

     The medical records of Dr. Daniel E. Fischer, claimant's

treating psychiatrist, constitute credible evidence to support

the commission's findings.   Dr. Fischer's records established

that claimant was under treatment for depression causally

related to his compensable injury by accident.   Nothing in those

records showed that Dr. Fischer believed that claimant was

capable of performing light duty work.   Based upon Dr. Fischer's

medical records, the commission could conclude that the evidence

failed to prove that claimant had been released to light duty

work from a psychiatric standpoint.    Accordingly, in the absence

of an appropriate release to light duty work, the evidence

failed to establish that claimant unjustifiably refused

selective employment.

            Unjustified Refusal of Medical Treatment

     In affirming the deputy commissioner's decision that

claimant cured his refusal of medical treatment on July 11,

2000, the commission found as follows:

               The deputy commissioner found that the
          claimant cured his May 10, 2000, refusal of
                               - 3 -
          medical treatment at Spineworks by appearing
          for treatment from Dr. [Steven L.] Gershon
          on July 11, 2000. The employer argues that
          this was only a "verbal assertion that he
          wanted to continue in the program" and was
          inadequate to effectuate a cure. We believe
          that the claimant cured his refusal on July
          11, 2000. Dr. Gershon noted that he
          initiated telephone contact with Spineworks
          personnel to have the claimant admitted
          again into the program. The claimant also
          began treatment at the V.A. Pain Clinic when
          Spineworks turned him down. Moreover,
          Dr. Gershon specifically approved this
          treatment. The evidence showed more than
          "verbal assent" to the Spineworks program,
          but real efforts on behalf of the claimant
          to receive treatment—two visits with
          Dr. Gershon and participation in a pain
          clinic.

     Based upon Dr. Gershon's medical records and claimant's

testimony, the commission, as fact finder, could reasonably

conclude that claimant, in good faith, cured his refusal of

medical treatment when he returned to Dr. Gershon, who attempted

to get claimant back into the Spineworks program, albeit

unsuccessfully.   As an alternative, claimant began treatment at

a pain clinic recommended by Dr. Gershon.   This credible

evidence showed more than mere "verbal assent" by claimant to

the Spineworks program.   Rather, it established that he took

affirmative action in seeking treatment, and it supported the

commission's finding that claimant cured his May 10, 2000

refusal of medical treatment.




                                - 4 -
              Duty to Market Residual Work Capacity

     Because we affirm the commission's finding that the

evidence failed to prove that claimant was released to light

duty from a psychiatric standpoint, we need not address this

issue.

     For the reasons stated, we affirm the commission's

decision.

                                                           Affirmed.




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