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the Virginia Court of Appeals.
CONSOLIDATED EQUIPMENT ERECTORS, INC., et
COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Felton and Kelsey
Argued at Salem, Virginia
Record No. 0772-03-3
ERECTORS, INC. AND
AMCOMP ASSURANCE CORPORATION
GARY L. CUMBIE
BY JUDGE D. ARTHUR KELSEY
NOVEMBER 12, 2003
FROM THE VIRIGINIA WORKERS’ COMPENSATION COMMISSION
S. Vernon Priddy III (Sands Anderson Marks & Miller, on
Philip B. Baker (Sanzone & Baker, P.C., on brief), for
Consolidated Equipment Erectors, Inc. and AmCOMP Assurance Corp.
appeal a decision
by the Workers’ Compensation Commission awarding Gary L.
Cumbie temporary total disability
benefits for his injury by accident. Finding that credible
evidence supports the commission’s
conclusions that Cumbie did not refuse selective employment and
did not fail to reasonably
market his residual capacity, we affirm.
On appeal, "we view the evidence in the light most
favorable to the prevailing party
before the commission." Clinchfield Coal Co. v. Reed, 40
Va. App. 69, 72, 577 S.E.2d 538, 539
(2003); Tomes v. James City (County Of) Fire, 39 Va. App. 424,
429, 573 S.E.2d 312, 315
Gary Cumbie injured his left foot on June 28, 2001, while
working for Consolidated
Equipment Erectors, Inc. on a job in New York. Dr. Scot Zindel,
a podiatrist, examined Cumbie
on July 10, 2001. He diagnosed a "re-aggravation of plantar
fasciitis of the left foot" caused by
Cumbie’s work injury.
Though 45 years old at the time of his accident, Cumbie
possessed limited intellectual
capacity and had granted his mother, Joyce Hunt, power of
attorney to conduct his business
August 9, 2001, at the request of Cumbie’s mother, Dr. Zindel sent a letter to
Consolidated stating that he asked Cumbie to "remain off
his foot, indefinitely until this
condition resolves (which may take several months). I believe he
would be willing to work if
you could find him a sit-down position." Cumbie’s mother
testified that she spoke with Tamara
Nuckols, Consolidated’s workers’ compensation
representative, shortly after Dr. Zindel sent this
letter. Nuckols said "the only position they had would be
in the shop, but that would be on his
feet. They didn’t have any sit-down positions."
Nuckols later contacted Cumbie’s mother and told her that
carrier, AmCOMP, had requested a second opinion. AmCOMP
scheduled an appointment with
another podiatrist, Dr. Peter F. Kelly, for October 30, 2001.
After the appointment, Dr. Kelly
sent a letter of medical necessity dated November 27, 2001, to
AmCOMP for custom
prescription molded orthotics, stating that Cumbie "is not
able to walk without pain" and has
been "diagnosed in exam and X-ray" with plantar
fasciitis resulting from "an injury to his left
foot at work on 6/28/01." Dr. Kelly’s office notes
contain no mention of work status, and
Cumbie and his mother testified that he communicated no work
release to them.
AmCOMP sent a letter to Dr. Kelly requesting Cumbie’s
diagnosis and work status.
Though the letter is dated October 26, 2001, Dr. Kelly testified
that "it looks like it was faxed on
December 17, 2001" and that it was "possible that [he] did not receive it ‘til December." In his
reply, Dr. Kelly responded to the question, "Is [Cumbie] capable of doing any type of work?"
with an unqualified "yes."
Responding to a letter from AmCOMP’s attorney on May 2, 2002,
however, Dr. Kelly clarified that Cumbie "cannot tolerate
prolonged weight-bearing. He is
capable of working seated, however there is no option for this
in his work." Dr. Kelly reiterated
this work restriction during his deposition on May 7, 2002,
stating Cumbie "was capable of
doing any kind of sit-down work."
Between February 17 and February 20, 2002, after consulting an
attorney, Cumbie filed
with the Virginia Employment Commission (VEC) seeking restricted
employment. He also filed
with the Department of Rehabilitation Services. Responding to a
VEC questionnaire on
February 20, 2002, Dr. Kelly wrote that Cumbie was "totally
unable to work" from October 30,
2001, to present, and that the earliest date Cumbie would be
able to return to work was "to be
determined." When directly asked if Cumbie was
"currently able to perform any work?," Dr.
Kelly answered "No."
On February 21, 2002, Cumbie received a certified letter from
him to return to work the following Monday. The letter,
apparently generated after Nuckols
finally received a copy of Dr. Kelly’s earlier unqualified
response to AmCOMP’s letter, stated:
On several occasions when you and I spoke — I requested that
return to work in the shop and you expressed that you couldn’t
stand on your foot. Based on the information I received from Dr.
Kelly, you are released to work.
I am requesting that you return to work on or before February
2002 at 8:00 a.m. to the shop.
The letter contained no mention of light duty.
In response to the letter, Cumbie’s mother called Dr. Kelly
and asked him about
Cumbie’s work status, telling him that Nuckols’s letter
"said that the doctor had released him to
go to work. Dr. Kelly said, I don’t recall any such thing. He
said the last thing I recall is sending
something saying it’s to be determined about his work
status." Cumbie and his mother obtained
a copy of Dr. Kelly’s VEC response and faxed it to
Consolidated. Cumbie then called
Consolidated and verified that they had received the VEC
Cumbie’s mother testified that she had no conversations with
Nuckols regarding work
release or light duty in the six months between their August
2001 telephone conversation
(regarding Dr. Zindel’s letter) and Consolidated’s February
19, 2002, letter (directing Cumbie to
return to work). Cumbie stated that he occasionally saw Nuckols
during this six-month period
and she would ask when he was coming back to work. He "told
her that I couldn’t" return to
work and stated that their conversations "didn’t involve
no [sic] light duty. There was no such
Nuckols testified regarding her normal procedures when handling
issues for Consolidated. She stated that when "an employee
is released to return to work" she
normally made a written request "that they return to work
within their restrictions." However,
though she contended that on several occasions she "had a
conversation with either Mr. Cumbie
or his mother about getting Mr. Cumbie back to work on light
duty," she acknowledged that she
had no written record of any such conversations and no written
correspondence from August
2001 to February 2002.
Cumbie filed a claim for temporary total disability benefits.
Consolidated defended on
the basis that Cumbie was "not totally disabled," that
he refused "light-duty employment
extended to him," and that he "failed to market his
residual capacity." The deputy commissioner
awarded benefits, finding none of the employer’s arguments
persuasive. On review, the full
commission unanimously affirmed. Finding the medical records
"confusing and contradictory,"
the commission held that Cumbie reasonably could not have been
expected to know about his
ability to return to light-duty work until Dr. Kelly’s
deposition on May 7, 2002, only a week
prior to the deputy commissioner’s hearing.
In its role as factfinder, the commission "resolves all
conflicts in the evidence and
determines the weight to be accorded the various evidentiary
submissions." Bass v. City of
Richmond Police Dep’t, 258 Va. 103, 114, 515 S.E.2d 557, 563
(1999). When based on credible
evidence, the commission’s judgments are "conclusive and
binding as to all questions of fact."
Id. (quoting Code ? 65.2-706(A)); see also Westmoreland Coal
Co. v. Russell, 31 Va. App. 16,
20, 520 S.E.2d 839, 841 (1999). Moreover, the commission’s
"conclusions upon conflicting
inferences, legitimately drawn from proven facts, are equally
binding on appeal." Watkins v.
Halco Eng’g, Inc., 225 Va. 97, 101, 300 S.E.2d 761, 763
Our deference to the commission’s factfinding applies
"even though there is evidence in
the record to support a contrary finding." S.P. Terry Co.
v. Rubinos, 38 Va. App. 624, 632, 567
S.E.2d 584, 588 (2002) (citations omitted). When the factual
record permits competing
inferences, we defer to the commission’s assessment of the
"probative weight to be accorded
evidence" — recognizing that the commission "is free
to adopt that view ‘which is most
consistent with reason and justice.’" Georgia-Pac. Corp.
v. Robinson, 32 Va. App. 1, 5, 526
S.E.2d 267, 269 (2000) (quoting C.D.S. Const. Servs. v. Petrock,
218 Va. 1064, 1070, 243
S.E.2d 236, 240 (1978)) (bracketed material omitted).
To support a finding of refusal of selective employment,
"the record must disclose (1) a
bona fide job offer suitable to 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 Mech., Inc. v. Lang, 38 Va. App. 509, 512,
566 S.E.2d 871, 872-73 (2002)
(quoting James v. Capitol Steel Constr. Co., 8 Va. App. 512,
515, 382 S.E.2d 487, 489 (1989))
(citations and internal quotation marks omitted). Once an
employer shows a "bona fide offer of
selective employment, ‘the employee bears the burden of
establishing justification for refusing
such employment.’" Hillcrest Manor Nursing Home v.
Underwood, 35 Va. App. 31, 37, 542
S.E.2d 785, 788 (2001) (quoting 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. (citations omitted).
Credible evidence supports Cumbie’s claim that Consolidated’s
February 19 letter was
not a bona fide job offer suitable to his capacity, even
if he had been aware that he could perform
light-duty work. The February 19 letter from Consolidated —
the only documented job offer
Consolidated made to Cumbie — directs only that he return to
work. It makes no mention of
light duty. And apart from the February 19 letter, no
documentary evidence suggests that
Consolidated offered Cumbie light-duty employment. Nuckols
testified that she repeatedly
asked Cumbie to return to work prior to sending the February 19
letter, but she maintained no log
or other documentation of the conversations, contrary to her
normal practice as Consolidated’s
workers’ compensation representative. Cumbie admitted that he
occasionally spoke with
Nuckols, but he stated that he did not understand any of their
conversations to contain an offer of
light-duty employment. Cumbie’s mother testified that after
she asked Dr. Zindel to send his
August 9, 2001, letter to Consolidated — stating that he asked
Cumbie to "remain off his foot,
indefinitely" and suggesting that Cumbie "would be
willing to work if you could find him a sit
down position" — Nuckols told her "the only position
they had would be in the shop, but that
would be on his feet. They didn’t have any sit-down
Given the work restrictions imposed by Drs. Kelly and Zindel,
the conflicting testimony
of Cumbie, his mother, and Nuckols, and the lack of documented
offers for light-duty
employment, we cannot say that the commission erred as a matter
of law by finding Cumbie did
not refuse a bona fide offer of selective employment
suitable to his work capacity.
An employee claiming entitlement to temporary total benefits
must take reasonable
measures to market his residual work capacity. Great Atl. &
Pac. Tea Co. v. Bateman, 4 Va.
App. 459, 464, 359 S.E.2d 98, 101 (1987). "[W]hat is
reasonable in a given case will depend
upon all of the facts and surrounding circumstances." Id.
at 467, 359 S.E.2d at 102. To
determine reasonableness, the commission should consider:
"(1) the nature and extent of
employee’s disability; (2) the employee’s training, age,
experience, and education; (3) the nature
and extent of employee’s job search; (4) the employee’s
intent in conducting his job search; (5)
the availability of jobs in the area suitable for the employee,
considering his disability; and (6)
any other matter affecting employee’s capacity to find
suitable employment." Nat’l Linen Serv.
v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d 31, 34 (1989).
Among other things, the sixth factor of the McGuinn test
"consideration of the claimant’s perception of his
condition, his abilities, and his employability,
and of the basis for that perception," Ridenhour v. Newport
News, 12 Va. App. 415, 418, 404
S.E.2d 89, 90-91 (1991), as well as the claimant’s
"[l]ack of mental capacity and education,"
Bateman, 4 Va. App. at 467, 359 S.E.2d at 102. "The
commission, of course, determines which
of these or other factors are more or less significant with
regard to the particular case," McGuinn,
8 Va. App. at 272-73, 380 S.E.2d at 34-35, and we treat the
commission’s factual determinations
as binding if supported by credible evidence, Code ?
65.2-706(A); Wall Street Deli, Inc. v.
O’Brien, 32 Va. App. 217, 220-21, 527 S.E.2d 451, 453 (2000).
In this case, credible evidence supports the commission’s
finding that Cumbie did not
unreasonably fail to market his residual work capacity. In July
2001, Cumbie suffered a
condition severe enough to prompt Dr. Zindel to later write that
"[i]n eighteen years of practice I
have had less than five patients which needed to be totally off
their feet from plantar fasciitis for
any sustained duration." In February 2002, Dr. Kelly
informed the VEC that Cumbie was still
"totally unable to work," that he had been unable to
work since October 30, 2001, and that the
earliest date Cumbie would be able to return to work was
"to be determined." Nevertheless,
Cumbie registered with the Department of Rehabilitation Services
and with the VEC and at the
hearing he stated a willingness to return to work at
Consolidated within his job restrictions.
Cumbie and his mother both testified that they understood that
he was "unable to do any work."
The basis for this perception was Dr. Kelly’s written and oral
comments throughout the course of
On this topic, we find no fault with the commission considering
limitations. Having attended eleventh grade special education
classes at age twenty-one,
Cumbie’s limited comprehension skills no doubt affected his
communication with Nuckols and
Dr. Kelly. Along the same lines, we also reject appellants’
claim that Cumbie’s mother was his
agent and thus her knowledge should have been imputed to him.
Though this principle is
certainly true as an abstract proposition,
it has no application here for two reasons. First, the
commission did not find that the scope of this agency
relationship was broad enough to impute
specific notice to Cumbie. And we find nothing in the record to
compel such a conclusion as a
matter of law. Second, in any event, credible evidence supports
his mother’s contention that she
too had been led by Dr. Kelly to believe that her son had no
residual work capacity to market.
As a result, whether an agent for this specific purpose or not,
Cumbie’s mother did not possess
imputable knowledge that would change the commission’s award
of temporary benefits in this
Because credible evidence supports the commission’s factual
findings on the selective
employment and residual work capacity issues, we affirm.
Code ? 17.1-413, this opinion is not designated for publication.
commissioner noted that "Cumbie at least reached the eleventh grade,"
that "he was not on the same education track as the typical
high school student. Based on the
evidence contained in Defendants’ Exhibit 1, Cumbie was at
least 21 years old while in the
eleventh grade and his mother held a power-of-attorney for all
financial matters." His mother
controls his banking accounts and pays his bills.
Nuckols, AmCOMP sent the same letter to Dr. Zindel. Dr. Zindel
responded on January 3, 2002, writing that he had not seen
Cumbie since July 10, 2001, and that
he could "not comment on how his condition is
progressing." However, he continued, "[i]n
eighteen years of practice I have had less than five patients
which needed to be totally off their
feet from plantar fasciitis for any sustained duration." He
reiterated his opinion from his August
9, 2001, letter that "Mr. Cumbie was capable of working
light duty where he would not be
required to lift heavy objects, he could sit the majority of the
day and remain non weight bearing
on his left foot."
general rule, the knowledge of an agent is imputed to his principal." Allen
Corp. v. Holbert, 227 Va. 441, 446, 318 S.E.2d 592, 594 (1984);
see also Yamada v. McLeod,
243 Va. 426, 433, 416 S.E.2d 222, 226 (1992); Infant C. v. Boy
Scouts of America, Inc., 239 Va.
572, 578, 391 S.E.2d 322, 326 (1990).