                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Willis, Frank and Clements


NURNIE E. REID
                                             MEMORANDUM OPINION*
v.   Record No. 2253-01-1                         PER CURIAM
                                               DECEMBER 11, 2001
CITY OF PORTSMOUTH SHERIFF'S OFFICE AND
 TRIGON ADMINISTRATORS


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Karen M. Rye; Kenneth J. Coughlan; Law
             Office of Karen M. Rye, on brief), for
             appellant.

             (William C. Walker; Amanda C. Castel;
             Taylor & Walker, P.C., on brief), for
             appellees.


     Nurnie E. Reid (claimant) contends the Workers'

Compensation Commission erred in finding that (1) the City of

Portsmouth Sheriff's Office (employer) proved that it made a

bona fide offer of selective employment to claimant; (2)

claimant failed to prove that he was justified in refusing

employer's offer of selective employment; and (3) claimant

failed to prove that he cured his unjustified refusal of

selective employment.     Upon reviewing the record and the briefs

of the parties, we conclude that this appeal is without merit.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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).

Factual findings made by the commission will be upheld on appeal

if supported by credible evidence.       James v. Capitol Steel

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

"If there is evidence, or reasonable inferences can be drawn

from the evidence, to support the Commission's findings, they

will not be disturbed on review, even though there is evidence

in the record to support a contrary finding."       Morris v. Badger

Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d

876, 877 (1986).

     On November 8, 1997, while working as a deputy sheriff,

claimant injured his back, neck, and knees, when he was struck

by a vehicle while directing traffic at an accident scene.        The

commission subsequently entered awards for temporary total

disability benefits from July 7 through August 15, 1999, and

from February 25 through April 3, 2000.      On October 18, 2000,

claimant filed a claim seeking reinstatement of temporary total

disability benefits.   At the hearing, claimant sought temporary

total disability benefits beginning November 30, 2000.      The

parties stipulated that claimant was restricted to light duty

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from November 30, 2000 through January 22, 2001 and that he was

temporarily totally disabled beginning January 23, 2001.

     In his September 17, 1999 office notes, Dr. Stephen C.

Blasdell, an orthopedic surgeon, opined that claimant could

return to work with permanent restrictions on kneeling and

lifting over thirty pounds.   On March 29, 2000, Dr. Anthony C.

Cetrone, an emergency and occupational medicine specialist,

released claimant to a D.A.R.E. educator job, stating that he

could lift up to twenty pounds occasionally and ten pounds

frequently.   Dr. Cetrone opined that claimant could not perform

work that might place him in a physical confrontation.

     After claimant's accident and at some point before August

2000, employer provided claimant with a light duty job in the

D.A.R.E. program.   Sheriff Gary W. Waters informed claimant that

he could no longer offer the D.A.R.E. job to claimant.   As a

result, Waters contacted the state to see what type of non-sworn

civilian employment he could offer to claimant.   Waters was

informed that there was a non-sworn job available in

classification of records for inmates at the jail.

     On September 29, 2000, claimant received a letter from

Waters stating that there were no light duty jobs available, but

that he had been authorized to offer claimant a civilian,

non-sworn position at a salary close to claimant's pre-injury

salary.   Claimant was asked to inform employer of his decision

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no later than ten days from the date of the letter.     Waters

testified that the job involved filing and keeping records of

inmates at the jail in the sheriff's department.     Waters

testified that this work was within the claimant's restrictions.

Waters stated that he was not sure whether he talked to claimant

specifically about the job.    Claimant never responded to the job

offer.   Rather, Jim Martin, claimant's disability attorney, told

Waters that claimant was not going to accept the job.     Waters

testified that Martin did not give any reason for claimant's

rejection of the job.

     Lauren DeRidder, employer's claims manager, testified that

she spoke with claimant about the job offer, but not

specifically about what the job entailed because she did not

have that information.   However, it was her understanding that

the job fell within claimant's restrictions.     She and claimant

discussed temporary partial disability benefits in the event

that there was a wage differential, medical benefits, and other

aspects of claimant's claim.   At that time, claimant was

undecided regarding the job offer.      DeRidder testified that just

before the deadline for the claimant to respond to the job

offer, they talked again and claimant was still undecided.

DeRidder "had the impression that he understood pretty much what

the job was and the concern was that it was not a sworn



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position, it was a civilian position."   Claimant expressed that

concern to DeRidder.

     Claimant testified that after his accident through December

2000, he performed a part-time sedentary security job that he

had held prior to the accident.   He worked one night per week

for four hours watching the parking lot of a bingo hall while

sitting in his vehicle.

             Bona Fide Offer of Selective Employment

               "Code § 65.2-510 was enacted . . . to
          encourage employers to procure employment
          suitable to partially incapacitated
          employees." 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." 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.

Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31, 37,

542 S.E.2d 785, 788 (2001) (citations omitted).

     Claimant contends that employer's evidence failed to prove

that it made a bona fide job offer to him.   However, based upon

claimant's undisputed physical restrictions, his ability to

perform the D.A.R.E. position, Waters' testimony that the

selective employment was within claimant's restrictions, and the

                              - 5 -
lack of any evidence that claimant ever expressed concern to

Waters or DeRidder that the job's duties were not within his

restrictions, the fact finder could infer that the filing and

recordkeeping job constituted a bona fide offer.   Thus, credible

evidence supports the commission's finding that employer made a

bona fide offer of selective employment to claimant.

                          Unjustified Refusal

               Upon a showing by employer of a bona
          fide offer of selective employment, "the
          employee bears the burden of establishing
          justification for refusing such employment."
          "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 offered work.'"

Id. (citation omitted).

     In ruling that claimant unjustifiably refused employer's

offer of selective employment, the commission found as follows:

          [T]he evidence establishes that the
          claimant's employer was well aware of the
          claimant's longstanding work restrictions,
          and indeed had been accomodating those
          restrictions. When the D.A.R.E. position
          was no longer available, Sheriff Waters
          procured a record-keeping job for the
          claimant in the jail portion of the
          sheriff's office at a salary close to the
          claimant's preinjury salary. This job was
          offered to the claimant, although the
          details of the job were not specifically
          described in the letter from Sheriff Waters
          or in subsequent conversations.
          Nonetheless, the claimant did not express
          any concern to Sheriff Waters or Ms.
          DeRidder that the job exceeded his
          restrictions. He never rejected the job
                                 - 6 -
             personally; rather, his disability attorney
             called and rejected the job on the
             claimant's behalf. No reason was given for
             the claimant's decision not to take the job.
             Specifically, neither the claimant nor his
             attorney stated that he was rejecting the
             job because it exceeded his restrictions or
             because they were concerned that it exceeded
             his restrictions. Ms. DeRidder testified
             that right before the deadline for
             responding to the offer, the claimant seemed
             to understand the job requirements and the
             only concern expressed by him was that the
             job was a civilian non-sworn position.

        Based upon the lack of any evidence that claimant refused

the job because he did not believe its duties fell within his

physical restrictions and DeRidder's testimony that claimant's

only concern was that the position was a civilian non-sworn job,

the commission, as fact finder, was entitled to infer that

claimant was not justified in refusing the offer on that basis.

          Cure of Unjustified Refusal of Selective Employment

        Claimant contends that the commission erred in finding that

his January 22, 2001 letter to employer's attorney requesting

light duty employment did not constitute a good faith cure of

his unjustified refusal of selective employment.

        The record established that claimant made no contact with

employer from the time he was offered the light duty

recordkeeping job on September 29, 2000 through January 22,

2001.    The January 22, 2001 letter was sent by claimant's

attorney to employer's attorney one day before claimant was

scheduled to undergo arthroscopic surgery.    At that time,
                                 - 7 -
claimant knew that he would be totally disabled for an

indeterminate period of time after the surgery.   In addition,

claimant knew that if he had been offered light duty employment

by the sheriff's office, he would not be able to accept it at

any time in the near future.   Furthermore, at the time the

January 22, 2001 letter was sent, claimant had been granted

disability retirement by the state.

     Based upon this record, the commission, as fact finder, was

entitled to conclude that this "last-minute letter . . . was not

sent in good faith," and failed to establish a cure of

claimant's unjustified refusal of selective employment.

     For these reasons, we affirm the commission's decision.

                                                          Affirmed.




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