NOTICE: The opinions posted here are subject to formal
revision. If you find a typographical error or other formal error, please notify
the Virginia Court of Appeals.
CASADA, et al.
COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Overton
Record No. 1228-03-1
DUANE C. CASADA AND
VANLINER INSURANCE COMPANY
DUANE C. CASADA
SEPTEMBER 23, 2003
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(S. Vernon Priddy III; P. Dawn Bishop; Sands
Anderson Marks & Miller, on brief), for
(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
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
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
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
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
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.
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
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
unjustified refusal of selective employment." As the finder
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
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.
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
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
GTS Limousines was offered by the employer . . . so as to
support a claim of unjustified refusal." The record
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.
For these reasons, we need not address the additional
question raised by Casada and we affirm the commission’s
Code ? 17.1-413, this opinion is not
designated for publication.
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.