                       COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Willis and Senior Judge Hodges
Argued at Norfolk, Virginia


WILLIAM R. PERRIGAN
                                                 MEMORANDUM OPINION * BY
v.      Record No. 2481-96-3                     JUDGE WILLIAM H. HODGES
                                                      JUNE 24, 1997
CLINCHFIELD COAL COMPANY


            FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

               Susan D. Oglebay for appellant.
               Michael F. Blair (Ramesh Murthy; Penn,
               Stuart, Eskridge & Jones, on brief), for
               appellee.



        William Perrigan (claimant) appeals from a decision of the

Virginia Workers' Compensation Commission (commission) holding

that he unjustifiably refused an offer of selective employment

and denying his claim for compensation effective November 17,

1995.       Claimant contends that the commission erred when it found

Clinchfield Coal Company (employer) met its burden of proving

that it made a bona fide offer of employment.         Claimant further

asserts that, even if the offer was bona fide, he justifiably

refused it.

        Employer raises the additional question whether the

commission erred when it found that claimant had no obligation to

market his residual capacity where employer stipulated that

claimant was temporarily totally disabled from August 24 through
        *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
November 16, 1995.    For the following reasons, we affirm the

commission in part and reverse it in part.

                             Background

      On appeal, we review the evidence in the light most

favorable to the party prevailing below.     See R.G. Moore Bldg.

Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788

(1990).    "Factual findings of the commission that are supported

by credible evidence are conclusive and binding upon this Court

on appeal."    Southern Iron Works, Inc. v. Wallace, 16 Va. App.

131, 134, 428 S.E.2d 32, 34 (1993). 1

      Claimant sustained a compensable knee injury on January 7,

1987. 2   An initial award was entered on July 8, 1988, pursuant to

a memorandum of agreement.    Claimant subsequently returned to

work, but benefits were reinstated through a supplemental

memorandum of agreement when he again became disabled.

      1
      Employer contends that claimant is precluded from
challenging the sufficiency of the evidence in this appeal, as he
indicated he was not challenging the sufficiency of the evidence
on his notice of appeal. As there is no evidence that employer
was prejudiced by this statement, we will address claimant's
sufficiency claim. See The Greif Companies v. Hensley, 22 Va.
App. 546, 552, 471 S.E.2d 803, 806 (1996); Johnson v. City of
Clifton Forge, 7 Va. App. 538, 541, 375 S.E.2d 540, 543 (1989),
rev'd en banc on other grounds, 9 Va. App. 376, 388 S.E.2d 654
(1990).
      2
      The Employer's Initial Report of Injury and Memorandum of
Agreement both refer to the injury as being to the right knee.
Claimant had surgery on this knee in March 1989. The surgery
related to the most recent disability was on claimant's left
knee. Medical records indicate the left knee injury dates back
to 1982. The parties have not raised causation as an issue in
this appeal.




                                  2
     On September 9, 1994, employer filed an application seeking

suspension of benefits on the ground that claimant unjustifiably

refused an offer of selective employment.   Claimant stipulated

that he no longer suffered from a work-related disability as of

September 9, 1994, and the commission entered an order

terminating benefits as of that date.

     Claimant underwent surgery for replacement of his left knee

on August 24, 1995.   On October 6, 1995, he filed a change in

condition application, seeking wage loss and medical benefits

commencing August 24, 1995.
     On October 19, 1995, employer's nurse case manager sent

claimant's physician, Dr. James L. Gardner, a job description for

the position of security communicator and asked Dr. Gardner

whether claimant could perform the job.   In a letter to the case

manager dated November 1, 1995, Dr. Gardner wrote that claimant

could perform all the requirements of this job "at most any time"

if he was "forced to do so."   On November 16, 1995, after meeting

with claimant, Dr. Gardner wrote:
          [t]he job description as described, in my
          opinion, a live body can perform if they have
          the capacity to answer a phone and talk. I
          have advised [claimant] that I have to
          approve this job description but I have
          reservations about his having to drive
          getting to and from work and whether this is
          included as part of their work capabilities,
          etc.


     Employer offered claimant a position as a security

communicator on November 27, 1995.   Claimant did not accept the




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offer and, on December 8, 1995, employer filed an application

seeking suspension of benefits based on claimant's refusal of the

position.   Employer further contended that any disability was

unrelated to the January 7, 1987 injury.

     In lieu of a hearing before the deputy commissioner, the

parties submitted documentary evidence and stipulated to certain

facts, including that claimant was temporarily totally disabled

from August 24 through November 16, 1995 and that he did not

accept employer's November 27, 1995 offer of employment.
     Relying on Dr. Gardner's "reservations" about claimant's

ability to drive to and from work, the deputy commissioner held

that employer's offer of employment was not bona fide.   The

deputy commissioner awarded benefits covering the period of

August 24 through November 16, 1995, but denied benefits

subsequent to November 16 on the ground that claimant was not

marketing his residual capacity.

     Claimant appealed to the full commission, which reached the

same result but for different reasons.    The commission concluded

that, because employer had stipulated to claimant's disability,

it was barred from asserting that claimant was not marketing his

residual capacity.   The commission held, however, that claimant

had unjustifiably refused selective employment.

     In finding employer's offer of employment bona fide, the

commission held that employer did not have the burden of proving

claimant could travel to and from work.    Rather, it concluded




                                   4
claimant had the burden to prove such an incapacity in justifying

his refusal of the position.   The commission then held that

claimant's refusal to accept the job on transportation grounds

was unjustified, reasoning that "there is nothing in the specific

restrictions imposed by the treating physician that would

preclude transportation, and it is unexplained how the claimant

could travel to and from his medical appointments, but could not

travel to and from the workplace."
                                I.

     Under Code § 65.2-510, "[i]f an injured employee

unjustifiably refuses selective employment offered by the

employer, he or she is 'no longer entitled to receive disability

compensation during the continuance of the refusal.'"     ARA

Services and Reliance Ins. v. Swift, 22 Va. App. 202, 206, 468

S.E.2d 682, 684 (1996) (citations omitted).    For benefits to be

denied, "the record must disclose (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."   Ellerson v. W.O. Grubb Steel

Erection Co., Inc., 1 Va. App. 97, 98, 335 S.E.2d 379, 380

(1985).   "In the case of a refusal of selective employment, the

employer has the burden to show that the position offered is

within the employee's residual capacity."     American Furniture Co.

v. Doane, 230 Va. 39, 42, 334 S.E.2d 548, 550 (1985).

     Claimant contends that the employer's burden of proving a



                                 5
bona fide offer of employment includes establishing that he was

physically capable of driving to and from work.   We disagree.

An employer is not required to provide transportation to the

selective employment it procured for the claimant.    See Johnson

v. City of Clifton Forge, 9 Va. App. 376, 379, 388 S.E.2d 654,

656 (1990).   Likewise, an employer is generally not liable for

injuries an employee sustains while travelling to and from work.

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

S.E.2d 347 (1987).
     The decision in Kendrick is particularly instructive.

There, we held the general rule was that "'an employee going to

or from the place of where his work is to be performed is not

engaged in performing any service growing out of and incidental

to his employment.'"    Id. at 190, 355 S.E.2d at 347 (citation

omitted).   The exceptions to this rule include (1) where the

means of transportation is provided by the employer, or employees

are compensated for the time spent by commuting; and (2) where

the employee is required to perform some work-related function or

duty while travelling to or from work.    See id. at 191, 355

S.E.2d at 347-48.    Logically, if neither of the above exceptions

applies to a particular position, then the employer would not

have to establish the claimant's physical ability to travel to

and from work to meet its burden of proving a bona fide offer of

selective employment.

     There is no evidence that transportation to and from the job




                                  6
site was to be provided by employer, or that it was an integral

part of the job itself.   We agree with the commission, therefore,

that employer was under no burden to prove that claimant was

physically capable of driving to and from work.   Further,

credible medical evidence supports the commission's conclusion

that claimant was able to perform all the physical requirements

of this position.

                                II.
     "When the employer establishes that 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).    "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).

     While Dr. Gardner expressed "reservations" about claimant's

ability to drive to and from work, claimant presented no evidence

that he was incapable of doing so, or that he had even tried to

do so.   He provided no other explanation for refusing the

position offered him.   We find that there is sufficient credible

evidence supporting the commission's finding that claimant was

not justified in refusing this selective employment.   Therefore,

we affirm that part of the commission's decision.



                                 7
                                III.

     Citing National Linen Service v. McGuinn, 5 Va. App. 265,

362 S.E.2d 187 (1987), the commission held that employer was

estopped from arguing that claimant had failed to market his

residual capacity subsequent to November 16, 1995.    In McGuinn,

the employer voluntarily paid the claimant temporary total

disability benefits for thirteen months following an August 1983

industrial accident, but did not execute a memorandum of

agreement to the commission.    See id. at 267, 362 S.E.2d at 188.

 In January 1985, the claimant filed an application with the

commission seeking continued payment of benefits.    The employer

defended on the ground that the claimant was not marketing his

residual work capacity.   See id. at 267-68, 362 S.E.2d at 188.

     The commission ruled in favor of the claimant, and we

affirmed, noting that the employer's failure to execute a

memorandum of agreement violated former Code § 65.1-93. 3   See id.

at 268, 362 S.E.2d at 188-89.   "If the agreement had been filed,

McGuinn's entitlement to compensation would have been
established, as well as the compensability of his injury, thus

obviating the need for him to show that he made reasonable

efforts to market his remaining work capacity."     Id. at 271, 362

S.E.2d at 190.   Furthermore, had an agreement been executed, the

employer "would have been obligated to honor the award until it

     3
      Former Code §§ 65.1-43 and 65.1-93 were merged into current
Code § 65.2-701.




                                  8
established by a preponderance of the evidence a change in

condition . . . and had been authorized by the commission to

terminate payment of benefits to McGuinn."   Id. at 270, 362

S.E.2d at 189.   The employer's "failure to abide by [former] Code

§ 65.1-93 misled McGuinn to his detriment into believing that he

was entitled to total work incapacity payments during the period

of his disability."   Id. at 271, 362 S.E.2d at 190 (emphasis

added).
     McGuinn is inapposite to the present case.   Here, employer

filed a memorandum of agreement and supplemental memorandum of

agreement with the commission following the initial injury.

Claimant's award was terminated as of September 9, 1994, and

employer made no voluntary payments to claimant thereafter.

Employer responded to claimant's October 6, 1995 application by

denying any current disability was related to the original,

compensable injury.   Further, the stipulation of disability

concerned a change in condition, not the claimant's original

application.
     McGuinn did not involve a stipulation, per se, but rather

the employer's implicit concession, through voluntary payment of

benefits, that the claimant was totally disabled as the result of

a compensable accident.   See id. at 267, 362 S.E.2d at 188.

Here, the stipulations into which employer entered with claimant

were evidentiary in nature, designed to narrow the issues and

expedite the review of the application.   "Cases before the




                                 9
[Workers' Compensation] Commission are frequently expedited or

disposed of by stipulations . . . ."    Harris v. Diamond Constr.

Co., 184 Va. 711, 724, 36 S.E.2d 573, 579 (1946).    "Such

stipulations save both time and expense for the litigants and are

to be encouraged and not condemned."    Id.   Employer's stipulation

in no way misled claimant, but rather benefited him by conceding

a fixed period of total disability.

     Accordingly, we find that the commission erred in finding

that employer was barred from raising the defense that claimant

had failed to market his residual work capacity.    Therefore, "to

establish entitlement, [the claimant has] the burden of proving

that he made a reasonable effort to procure suitable work but was

unable to market his remaining work capacity."     Washington

Metropolitan Area Transit Authority v. Harrison, 228 Va. 598,

601, 324 S.E.2d 654, 656 (1985).    When determining whether a

claimant has made a reasonable marketing effort,
          the commission must consider several factors,
          including (1) the nature and extent of the
          employee's disability; (2) the employee's
          training, age, experience and education; (3)
          the nature and extent of the employee's job
          search; (4) the employee's intent in
          conducting the job search; (5) the
          availability of jobs in the area suitable for
          the employee, considering his or her
          disability; and (6) any other matter
          affecting the employee's capacity to find
          suitable employment.


The Greif Companies v. Sipe, 16 Va. App. 709, 715-16, 434 S.E.2d

314, 318 (1993).

     The medical evidence established that claimant is capable of


                               10
performing sedentary employment.    Claimant has presented no

evidence, however, of any steps he has taken since November 16,

1995 to market his residual capacity.   Therefore, having found

that employer is not barred from raising this defense, we find as

a matter of law that claimant has not marketed his residual work

capacity since November 16, 1995.
                                               Affirmed in part,
                                               reversed in part.




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