                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Senior Judge Coleman
Argued at Alexandria, Virginia


ROCHESTER CABLE AND
 INSURANCE COMPANY OF THE
 STATE OF PENNSYLVANIA
                                                               MEMORANDUM OPINION ∗ BY
v.     Record No. 2139-09-4                                    JUDGE SAM W. COLEMAN III
                                                                      JUNE 8, 2010

MELISSA ANN CARPENTER


              FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 Kathryn Lea Harman (Andrew M. Alexander; Semmes, Bowen &
                 Semmes, on briefs), for appellants.

                 David L. Bayne, Jr. (Ashcraft & Gerel, LLP, on brief), for appellee.


       Rochester Cable and the Insurance Company of the State of Pennsylvania (employer)

appeal a decision of the Workers’ Compensation Commission (commission) finding Melissa

Ann Carpenter (claimant) reasonably refused the selective employment offered by employer and

that upon leaving her light-duty position, she adequately marketed her residual work capacity

and was entitled to temporary total disability benefits from January 18, 2008 and continuing. For

the reasons stated, we affirm the commission’s award of benefits.

                                            BACKGROUND

       “On appeal, we view the evidence in the light most favorable to [claimant,] the prevailing

party before the commission.” Cent. Va. Obstetrics & Gynecology Assocs., P.C. v. Whitfield,

42 Va. App. 264, 269, 590 S.E.2d 631, 634 (2004). “Factual findings of the commission will not



       ∗
           Pursuant to Code 17.1-413, this opinion is not designated for publication.
be disturbed on appeal, if based upon credible evidence.” DePaul Med. Ctr. v. Brickhouse, 18

Va. App. 506, 507, 445 S.E.2d 494, 495 (1994).

       So viewed, the evidence established that claimant sustained a compensable workplace

injury to her right shoulder on June 14, 2006, which she aggravated in a separate incident on July

28, 2006. Prior to the injury she worked as a ferring operator, a job that required frequent heavy

lifting. Because claimant required surgery and was unable to perform any work for a period of

time afterward, employer agreed to pay temporary total disability (TTD) benefits from October

19, 2006 through January 17, 2007. Claimant was released to perform light-duty work in

January 2007.

       Wayne Clevenger, employer’s workers’ compensation coordinator, offered claimant a

light-duty position within the company that involved data entry and filing. Claimant accepted

the position with the knowledge that it involved “desk work,” and she returned to work January

18, 2007. Claimant received work from two different departments within the company, each of

which expected to have at least six weeks of work for her to complete. She completed her data

entry assignments in “less than a week,” her filing assignments in “less than two weeks,” and all

of her assignments by the end of January 2007. Claimant testified that she “begg[ed] everybody”

to give her additional work, but “[n]o one had anything for [her] to do.” She asked Clevenger for

more work, but “like everybody else,” he did not have any work to give her. She explained her

understanding of the job when she accepted it was that it would involve “desk work,” “[n]ot to

go in there and do nothing . . . [a]nd to be driven crazy.” She reported to work for between five

and six consecutive weeks without having any work to do or tasks assigned to her. She

explained that “[y]ou weren’t allowed to have reading material” and were not permitted to do

anything else while at work. She often came home crying because she spent her days “stuck in a

room begging for work.” She felt she “was basically pushed out of [her] job.” Claimant’s

                                               -2-
husband testified on her behalf, echoing claimant’s frustration with the lack of work available to

her and confirming that she often came home from work crying as a result. Claimant left her job

on March 12, 2007, seven weeks and four days after she began her light-duty position with

employer, and five weeks and five days after she completed her assigned tasks. Although

claimant called a friend in employer’s human resources department and said “I probably

wouldn’t be seeing her anymore” before leaving the job, claimant conceded she did not provide

employer with formal notice that she was not planning to return to work.

       Claimant did not look for work from March 2007 through August 2007. 1 She again

became totally disabled in August 2007, and after her second shoulder surgery in December

2007, claimant’s doctor released her to perform light-duty work. Claimant looked for work

suitable to her capacity from January 24, 2008 until June 12, 2008, the date of the hearing before

the commission.

       The commission found that after claimant was released to return to light-duty work on

January 18, 2007, employer failed to provide claimant with a bona fide offer of light-duty

employment or, alternatively, that claimant did not unjustifiably refuse the employment that was

offered, that claimant adequately marketed her residual work capacity, and that claimant was

entitled to TTD benefits from January 18, 2008 and continuing. Employer appealed each of the

rulings of the commission.




       1
         Claimant originally sought benefits for this period, but the deputy denied her request
because she did not market her residual capacity between March and August 2007. Claimant has
not appealed that denial. When claimant was again totally disabled from August 10, 2007
through January 17, 2008, employer paid claimant TTD benefits for that period.

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                                           ANALYSIS

                                I. Refusal of Selective Employment

       “‘Code § 65.2-510 was enacted . . . to encourage employers to procure employment

suitable to partially incapacitated employees.’” Hillcrest Manor Nursing Home v. Underwood,

35 Va. App. 31, 37, 542 S.E.2d 785, 788 (2001) (quoting Food Lion, Inc. v. Lee, 16 Va. App.

616, 619, 431 S.E.2d 342, 344 (1993)) (alteration in original). “An employer seeking to

terminate compensation benefits pursuant to the statute must establish ‘(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.’” Id. (quoting Ellerson v. W.O. Grubb

Steel Erection Co., 1 Va. App. 97, 98, 335 S.E.2d 342, 344 (1993)). Whether each of these

elements has been proved is a question of fact. Ellerson, 1 Va. App. at 98, 335 S.E.2d at 380.

       “The term ‘bona fide’ is defined as ‘made in good faith; without fraud or deceit.’”

Shepherd v. Davis, 265 Va. 108, 121, 574 S.E.2d 514, 521 (2003) (quoting Black’s Law

Dictionary 168 (7th ed. 1999)). “To constitute a bona fide offer, the selective employment

contemplated by Code § 65.2-510 must be upon terms and conditions sufficiently specific to

permit informed consideration by an employee, and comprised of duties consistent with

employee’s remaining work capacity.” Underwood, 35 Va. App. at 37, 542 S.E.2d at 788

(citation omitted). The employer bears the burden of proving it made a bona fide offer of

selective employment within the employee’s residual capacity. Am. Furniture Co. v. Doane, 230

Va. 39, 42, 334 S.E.2d 548, 550 (1985). “[If] the employer establishes that [bona fide] selective

employment was offered to an employee that was within the employee’s capacity to work, the

employee bears the burden of establishing justification for refusing the offered employment.”

Food Lion, Inc. v. Lee, 16 Va. App. 616, 619, 431 S.E.2d 342, 344 (1993). Whether “[the]

refusal was justified” is to be determined “in the opinion of the Commission.” Code § 65.2-510.

                                               -4-
“An employee who unjustifiably refuses selective employment forfeits his entitlement to wage

loss benefits ‘during the continuance of such refusal.’” Food Lion, Inc. v. Newsome, 30

Va. App. 21, 24, 515 S.E.2d 317, 319 (1999) (quoting Code § 65.2-510)).

        “To support a finding of justification to refuse suitable selective employment, ‘the

reasons advanced must be such that a reasonable person desirous of employment would have

refused the offer to work.’” Lee, 16 Va. App. at 619, 431 S.E.2d at 344 (quoting Johnson v. Va.

Empl. Comm’n, 8 Va. App. 441, 447, 382 S.E.2d 476, 478 (1989)).

               [T]he determination of justification to refuse employment involves
               “a much broader inquiry than merely considering whether the
               intrinsic aspects of the job are acceptable to the prospective
               employee.” Justification to refuse an offer of selective
               employment “may arise from factors totally independent of those
               criteria used to determine whether a job is suitable to a particular
               employee.”

Id. (quoting Johnson, 8 Va. App. at 452, 382 S.E.2d at 481). This Court has observed further

that

               [i]n any legislation as extensive as workers’ compensation, it is
               impossible to anticipate and legislate every potential event
               intended to be covered. For that reason, phrases such as “unless in
               the opinion of the Commission such refusal was justified” are
               provided so that those appointed to implement the compensation
               laws may make discretionary judgments that carry out the
               legislative intent. [Where] credible evidence in the record supports
               it, we find that . . . the commission’s opinion is in accord with that
               intent . . . .

Brickhouse, 18 Va. App. at 508, 445 S.E.2d at 495 (determining whether credible evidence in the

record supported the commission’s finding that a claimant’s refusal of selective employment was

justified).

        Here, the evidence, when viewed in the light most favorable to claimant, the prevailing

party below, established that employer offered claimant a position completing data entry and

filing for two departments within the company. Claimant accepted that job, which she began on

                                                -5-
January 18, 2007, and it originally provided her with a reasonable amount of light-duty work

suitable to her restricted capacity, rendering it a bona fide offer for purposes of the statute.

However, the evidence, viewed in the light most favorable to claimant, also established that by

the end of January, less than two weeks after claimant began her light-duty position, she had

completed all of her assigned tasks. Claimant requested more work from her supervisor and

other co-workers, but despite her efforts to obtain work, she was without any tasks to complete

for more than five weeks before she left the job. She testified she was not permitted to occupy

herself in any other way during that period of time, such as by reading a book or a magazine.

We conclude the extended length of time claimant was required to be present at work without

having any work-related tasks to perform and without being allowed to engage in any other

activities to occupy her time, combined with the evidence that this placed an emotional strain on

her severe enough to cause her to go home crying on a regular basis and to feel as if she was

being “driven crazy,” supports the unanimous decision, “in the opinion of the Commission,” that

“[the] refusal was justified.” Code § 65.2-510(A). 2

       As we recognized in Underwood, 35 Va. App. at 37, 542 S.E.2d at 788, the purpose of

Code § 65.2-510 is to “encourage employers to rehire the disabled,” Doles v. Indus. Comm’n ,

810 P.2d 602, 607 (Ariz. Ct. App. 1990) (decided under Arizona’s statutory scheme), and “yet [it

should] not make disabled workers captives of one job,” id. at 604, 607 (making this observation

in the context of determining whether the claimant’s “modified position accurately established


       2
          Such circumstances render this case readily distinguishable from a situation in which an
employee has temporary, intermittent slow periods between tasks. We do not attempt to define
the precise parameters of what may constitute an unreasonable refusal of employment for all
cases. We conclude only that the evidence in this case, viewed in the light most favorable to
claimant, supports the commission’s unanimous finding that this particular claimant’s refusal of
this particular position as it existed on March 12, 2007, was not unreasonable. We also note that
we consider only the factual reasons for claimant’s refusal and not the manner or means by
which she chose to demonstrate that refusal.

                                                 -6-
[her] earning capacity”). “This could place a worker in the tenuous position of working under

unbearable or demeaning circumstances should an unscrupulous employer desire to eliminate

[workers’ compensation] payments by coercing the worker into refusing the employer’s offer of

employment or coercing him into quitting subsequent to returning to work.” Payne v. Country

Pride Foods, Ltd., 525 So. 2d 106, 109 (La. Ct. App. 1988) (making this observation in the

context of determining the claimant’s post-injury wage earning capacity). We need not

determine whether employer intentionally engaged in any such behavior in this case and

conclude only that the evidence supports the commission’s finding that claimant’s refusal of the

job as it existed on March 12, 2007, was justified.

                             II. Marketing Residual Work Capacity

       “In a claim for temporary partial disability, the employee ‘[has] the burden of proving

that [she has] made reasonable effort to procure suitable work but [is] unable to market [her]

remaining work capacity.’” County of James City Fire Dep’t v. Smith, 54 Va. App. 448, 454,

680 S.E.2d 307, 310 (2009) (quoting Washington Metro. Area Transit Auth. v. Harrison, 228 Va.

598, 601, 324 S.E.2d 654, 656 (1985)). “There are no fixed guidelines for determining what

constitutes a ‘reasonable effort,’” but “[the] employee must ‘exercise reasonable diligence in

seeking employment’ and the reasonableness of an employee’s effort will be determined on a

case-by-case basis, taking into account ‘all of the facts and surrounding circumstances.’” Ford

Motor Co. v. Favinger, 275 Va. 83, 89-90, 654 S.E.2d 575, 579 (2008) (quoting Great Atl. &

Pac. Tea Co. v. Bateman, 4 Va. App. 459, 467, 359 S.E.2d 98, 102 (1987)).

               An award by the Commission is conclusive and binding as to all
               questions of fact. The determination as to whether an employee
               seeking . . . disability benefits has made a reasonable effort to
               market his residual work capacity falls within the Commission’s
               fact-finding, and if the Commission’s factual conclusion on that




                                               -7-
               question is supported by credible evidence, it will not be disturbed
               on appeal.

Id. at 88, 654 S.E.2d at 578 (citations omitted).

       Prior to her workplace injuries, claimant had a physically demanding job as a ferring

operator which required her to lift 50 pounds. After claimant injured her shoulder, her work

restrictions prevented her from lifting more than 10 pounds, and she could not lift her arm over

her head or exert any type of resistance with her arm. She testified that she completed a log

documenting six of her contacts seeking employment, and she estimated that the total number of

businesses she contacted in her search for suitable employment was somewhere between forty

and fifty. 3 She had previously worked for the county as a teacher’s assistant for handicapped

students, a job she said was “kind of” “[her] passion.” She wanted to return to that position after

her injury, but she said her lifting restrictions prevented her from doing so because that position

required her to be able to lift fifty pounds in order to physically restrain a student having a

seizure or a temper tantrum. She also contacted the Culpeper County Day Care, which could not

hire her. She started filling out a sheet of her job contacts, but she said she “got so disgusted

with trying to find employment” because of her restrictions that she “gave up on filling them

out.” She explained that she applied for many fast food jobs, although she thought she was

incapable of performing the tasks required for such jobs, “[b]ecause that’s what’s available.”

Although claimant merely telephoned the Virginia Employment Commission (VEC) and did not

register with it, this fact is not dispositive; there is no per se rule barring employees who have

otherwise marketed their residual work capacity from receiving benefits under the Act for failing

to register with the VEC. Herbert Bros., Inc. v. Jenkins, 14 Va. App. 715, 717, 419 S.E.2d 283,



       3
         Despite claimant’s explanation that when she said she applied for forty to fifty jobs
“that was just a number,” the commission found her testimony to be persuasive, as it was entitled
to do.
                                              -8-
285 (1992). Viewing the evidence in the light most favorable to claimant, we cannot conclude

the commission erred in finding she engaged in a bona fide search to find appropriate work given

her work restrictions, previous work experience, and the job market in the geographical area. As

such, we hold the commission did not err in awarding TTD from January 18, 2008 and

continuing.

       For these reasons, we affirm the decision of the commission.

                                                                                      Affirmed.




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