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FLESHMAN v. MARRIOTT AND CONTINENTAL INSURANCE COMPANY


FLESHMAN v. MARRIOTT AND
CONTINENTAL INSURANCE COMPANY

(unpublished)


MAY 19, 1998
Record No. 0224-98-3

RACHEL FLESHMAN

v.

MARRIOTT AND
CONTINENTAL INSURANCE COMPANY

Present: Judges Bray, Annunziata and Overton

MEMORANDUM OPINION[1]
PER CURIAM
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

(Rachel Fleshman, pro se, on brief).

(Roger L. Williams; John T. Cornett, Jr.; Williams & Lynch,
on brief), for appellees.


Rachel Fleshman ("claimant") contends that the
Workers’ Compensation Commission ("commission") erred
in suspending her compensation benefits as of September 26, 1996
on the grounds that she unjustifiably refused selective
employment offered to her by Marriott ("employer") and
that she failed to market her residual work capacity. Upon
reviewing the record and the briefs of the parties, we conclude
that this appeal is without merit. Accordingly, we summarily
affirm the commission’s decision. See Rule 5A:27.

On appeal, we view the evidence in the light most favorable to
the prevailing party below. See R.G. Moore Bldg. Corp.
v. Mullins
, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Findings of fact 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 following facts were not in dispute. On September 16,
1996, claimant’s treating physician, Dr. John W. Barnard, Jr.,
approved a light?duty job description for the position of dining
room attendant. As a result, Ernie Minor, employer’s general
manager of food services, contacted claimant on September 19,
1996 and offered her the position. On September 23, 1996,
claimant contacted Minor and told him that she would not return
to work because she believed she remained disabled. In February
1997, claimant contacted employer and agreed to accept the
light?duty position previously offered to her. However, at that
time, the position was no longer available. Claimant admitted
that she had made no attempt to market her residual work capacity
since September 20, 1996 other than contacting employer in
February 1997.

In granting employer’s application, the commission made the
following findings:

[T]he claimant argues that, we should not follow Dr. Barnard’s
opinion that she could do the light duty work. However, the
claimant provided no medical evidence to rebut Dr. Barnard’s
medical opinion that she was capable of returning to work and
able to perform the dining room attendant duties. Dr. Barnard
treated the claimant since December 1995. We, as did the Deputy
Commissioner, believe [Dr. Barnard] was capable of saying whether
the claimant could work at the light?duty position. We therefore
AFFIRM the Deputy Commissioner’s decision that her refusal to
accept the job was unjustified.

The Deputy Commissioner also held the claimant cured her
unjustified refusal of selective employment in February 1997 when
she told the employer she would accept the dining room attendant
position. Nevertheless, because of the claimant’s admitted
failure to market her residual work capacity after September 20,
1996, the Deputy Commissioner held that she was not entitled to a
resumption of wage benefits.

Dr. Barnard’s medical records and opinions provide credible
evidence to support the commission’s decision. Claimant contended
that she could not perform the job offered to her by employer.
However, claimant never attempted to perform the job nor did she
provide credible medical evidence to support her subjective
belief that she could not perform the duties of the light?duty
job offered to her by employer. Moreover, she admitted that she
failed to market her residual work capacity after September 20,
1996.

Based upon this record, we cannot find that the commission
erred in granting employer’s application and suspending
claimant’s benefits. Accordingly, we affirm the commission’s
decision.

Affirmed.

 

 

 

 

FOOTNOTES:

[1] Pursuant to Code Sect. 17?116.010 this
opinion is not designated for publication.

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