                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Humphreys and Senior Judge Overton


DUANE C. CASADA AND
 VANLINER INSURANCE COMPANY
                                           MEMORANDUM OPINION*
v.   Record No. 1228-03-1                       PER CURIAM
                                            SEPTEMBER 23, 2003
DUANE C. CASADA


       FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           (S. Vernon Priddy III; P. Dawn Bishop; Sands
           Anderson Marks & Miller, on brief), for
           appellants.

           (Keith Loren Kimball; Colgan, Kimball &
           Carnes, on brief), for appellee.


     Duane C. Casada and Vanliner Insurance Company (hereinafter

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

Compensation Commission erred in finding that (1) the employer

did not raise the defense of unjustified refusal of selective

employment at the hearing before the deputy commissioner;

(2) Casada did not refuse selective employment when he was

terminated from his police dispatcher's job for making a

mistake; and (3) Casada was entitled to an award of continuing

temporary partial disability benefits after July 26, 2001 based

upon his average weekly wage in his animal control job.

Pursuant to Rule 5A:21, Casada contends the employer is estopped


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
from arguing that Casada unjustifiably refused selective

employment.   Upon reviewing the record and the parties' briefs,

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).    So

viewed, the employer indicated in the "PREHEARING STATEMENT"

that it was defending on the grounds that Casada was not

entitled to temporary total disability benefits or temporary

partial disability benefits after July 26, 2001 "due to failure

to market, failure to adequately market, in that he has not

found job comparable to one carrier found and/or has failed to

market job skills as required by National Linen v. McGuinn,

current back problems not causally related."   Consistent with

that statement, the deputy commissioner noted in his July 8,

2002 opinion that the employer defended Casada's application on

the ground that Casada failed to make reasonable efforts to

market his residual work capacity.   On its review, the

commission found that the employer did not raise unjustified

refusal of selective employment as a defense during the hearing.1




     1
       On appeal, the employer does not challenge the
commission's finding that Casada proved by a preponderance of
the evidence that he adequately marketed his residual work
capacity after July 26, 2001. Accordingly, we will not address
                              - 2 -
        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).    The record discloses that the employer made no

reference to unjustified refusal of selective employment in

either its "PREHEARING STATEMENT" or at the hearing on Casada's

application.    The employer's defense was that Casada had failed

to market his residual work capacity in obtaining the animal

control job.    In addition, the record supports the commission's

finding that the employer stipulated that Casada was entitled to

increased temporary partial disability benefits during his

employment as a police dispatcher from May, 2000 until July 26,

2001.    The commission could reasonably infer from the employer's

stipulation that the employer "tacitly agreed that there was no

unjustified refusal of selective employment."    As the finder of

fact, "[t]he commission was privileged to draw a reasonable

inference from the evidence."    Buzzo v. Woolridge Trucking,

Inc., 17 Va. App. 327, 333, 437 S.E.2d 205, 209 (1993).     When

the commission does so, "[t]hat action . . . is a finding of

fact subject to the credible evidence standard."    Id.

Accordingly, we hold that the record supports the commission's

finding that the employer did not raise the defense of

unjustified refusal of selective employment.    Credible evidence

supports the finding and the inference drawn by the commission.


that finding on this appeal.     - 3 -
       In its second and third questions presented, the employer

contends that Casada unjustifiably refused selective employment

when he was terminated from his police dispatcher job and that

he failed to "cure" this refusal under Code § 65.2-510 when he

replaced that job with his part-time animal control job.    Thus,

the employer contends that the commission erred in awarding

temporary partial disability benefits to Casada after July 26,

2001 based upon his average weekly wage in his animal control

job.

       On review before the commission, however, the employer's

sole argument in its responsive written statement to the

commission was that the deputy commissioner correctly found that

Casada unjustifiably refused selective employment procured for

him by employer with GTS Limousines in Virginia by relocating to

Arkansas.   We note that the commission observed in a footnote

"that there is no evidence in the record showing the job with

GTS Limousines was offered by the employer . . . so as to

support a claim of unjustified refusal."   The record supports

that finding.   Moreover, because the record supports the

commission's finding that the employer did not raise the issue

of unjustified refusal of selective employment as a defense to

Casada's application, we will not consider it on appeal.    See

Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 192, 355

S.E.2d 347, 349 (1987); Rule 5A:18.


                                - 4 -
     For these reasons, we need not address the additional

question raised by Casada and we affirm the commission's

decision.

                                                           Affirmed.




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