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the Virginia Court of Appeals.
NEWPORT NEWS SHIPBUILDING AND DRY DOCK
COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Kelsey and Senior Judge Hodges
Record No. 1230-03-1
NEWPORT NEWS SHIPBUILDING AND
DRY DOCK COMPANY
WILLIAM A. WINSTON
SEPTEMBER 30, 2003
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Jonathan H. Walker; Mason, Mason, Walker &
Hedrick, P.C., on brief), for appellant.
(Matthew H. Kraft; Rutter, Walsh, Mills &
Rutter, L.L.P., on brief), for appellee.
Newport News Shipbuilding and Dry Dock Company (employer)
contends the Workers’ Compensation Commission erred in finding
that employer failed to prove that William A. Winston (claimant)
unjustifiably refused a bona fide offer of 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).
"’To support a finding of refusal of selective employment
"the record must disclose (1) a bona fide job offer
the employee’s capacity; (2) [a job offer that was] procured for
the employee by the employer; and (3) an unjustified refusal by
the employee to accept the job."’" Atlas Plumbing and
Mechanical, Inc. v. Lang, 38 Va. App. 509, 512, 566 S.E.2d 871,
872-73 (2002) (citations omitted). "To constitute a bona
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) (citation omitted).
Unless we can say as a matter of law that employer’s
evidence sustained its burden of proving the elements necessary
to terminate compensation due to an unjustified refusal of
selective employment, the commission’s findings are binding and
conclusive upon us. See Tomko v. Michael’s Plastering Co., 210
Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In ruling that employer’s evidence did not sustain its
burden of proof, the commission found as follows:
It is not enough that the claimant was
told to report to the clinic [on October 2,
2000] to inquire whether the employer had a
light duty position available or that had he
gone to the clinic he would have learned
that there was a light duty job for him.
The Commission has held that an offer of
light duty work must be specific or give
sufficient information about the nature of
the work so that the claimant knows the
employer is offering work within the
It would have been permissible for the
employer to offer a specific job that
complied with the restrictions or to tell
the claimant that there was work available
that met his restrictions. Here, the
claimant only was told that there might be
Since there was no offer of employment,
there was no refusal of selective employment
within the meaning of Code ? 65.2-510.
Accordingly, we find that the claimant did
not unjustifiably refuse selective
Claimant’s testimony supports the commission’s findings
that employer never offered him any specific light-duty work
within his restrictions. Moreover, no evidence showed that
light-duty work within claimant’s restrictions was available at
employer’s workplace as of October 2 or 3, 2000. A medical
caseworker instructing a claimant to report to an employer’s
clinic with a copy of his restrictions to inquire whether any
light-duty work is available is not the equivalent of an
employer making a bona fide offer of selective employment.
We also find no merit in employer’s argument that claimant
somehow constructively refused selective employment by failing
to bring a copy of his restrictions to the clinic on October 2,
2000 or October 3, 2000, as instructed by Mary Gray, claimant’s
rehabilitation medical case manager. Claimant testified that he
was unable to go to the clinic on October 2, 2000 and that he
did not feel well on October 3, 2000. Claimant also testified
that he believed Gray was going to take a copy of his
restrictions to the clinic.The
commission, as fact finder, was
entitled to accept claimant’s testimony. Furthermore, the
evidence proved that on October 16, 2000, when claimant received
employer’s October 10, 2000 letter instructing him to report to
the clinic prepared to work, he reported to work the next day
ready to work. However, employer made no offer of selective
employment to him at that time, but rather terminated his
Based upon this record, the commission could reasonably
conclude that employer did not make a bona fide offer of
selective employment to claimant which he could have either
accepted or refused between October 2, 2000 and October 17,
2000. Accordingly, we cannot find as a matter of law that
employer proved it made a bona fide offer of selective
employment to claimant that was within his restrictions.
For these reasons, we affirm the commission’s decision.
Code ? 17.1-413, this opinion is not
designated for publication.
that on October 3, 2000, she faxed a copy
of claimant’s restrictions to Sarah Bradby, claimant’s workers’
compensation case manager.