COURT OF APPEALS OF VIRGINIA<\/p>\n
Present: Judges Benton, Bumgardner and Agee
\nArgued at Alexandria, Virginia<\/p>\n
ATLAS PLUMBING AND MECHANICAL, INC., AND
\n HARTFORD CASUALTY INSURANCE COMPANY
\n OPINION BY
\nv. Record No. 3121-01-4 JUDGE G. STEVEN AGEE
\n JULY 23, 2002
\nJERRY LEE LANG<\/p>\n
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION<\/p>\n
Alexander Francuzenko (O’Connell & O’Connell,
\non brief), for appellant.<\/p>\n
Jimmy L. Hill (Roger Ritchie & Partners,
\nP.L.C., on brief), for appellee.<\/p>\n
Atlas Plumbing and Mechanical, Inc. and its insurer
\n(hereinafter referred to as “employer”) contend the Workers’
\nCompensation Commission erred in finding that Jerry Lee Lang
\n(claimant) was justified in refusing selective employment
\noffered to him by employer. We disagree and affirm the
\ncommission’s decision.
\nI. BACKGROUND
\n Claimant began working for employer as a plumber in July
\n1993. Prior to going to work for employer, claimant worked as a
\nplumber for another company, which provided him with
\ntransportation to and from work. Employer solicited claimant to
\nleave his existing job and work for it. Claimant’s acceptance
\nof employer’s offer of employment was conditioned on employer’s
\npromise to provide him with transportation to and from work.
\nClaimant lived seventy miles from employer’s office in Manassas
\nand was assigned job sites in Northern Virginia, all of which
\nwere over an hour from claimant’s home in Luray. The commission
\nfound claimant’s testimony was unrebutted that when claimant
\naccepted employer’s offer of employment employer agreed to
\nprovide transportation to claimant “as long as . . . [he] worked
\nfor Atlas.”
\n On July 2, 1999, claimant sustained a compensable injury by
\naccident to his lower back while working for employer. Pursuant
\nto a Memorandum of Agreement filed with the commission, claimant
\nreceived temporary total benefits beginning on July 3, 1999.
\n On February 7, 2000, claimant was released by his physician
\nto light-duty work. On May 3, 2000, the employer filed an
\nApplication for Hearing with the commission, alleging the
\nclaimant refused a February 10, 2000 offer of selective
\nemployment at its Manassas warehouse.
\n At a hearing before the commission, claimant testified that
\nhe was interested in the position offered but was unable to
\naccept it because the position did not include transportation to
\nand from work.1 Claimant did not own a vehicle that he could<\/p>\n
1 Claimant received a letter from employer on February 9,
\n2000, which confirmed his release to light-duty work,
\nacknowledged the offer of a light-duty position in the
\nwarehouse, and stated claimant was to report to work on February
\n10, 2000, at 7:00 a.m. The letter also stated:
\n– 2 –
\ndrive to and from Manassas and was unable to arrange
\ntransportation. The commission held claimant was justified in
\nrefusing the offered selective employment:
\nWhile we agree that as a general
\nproposition, employers do not have to
\nprovide employees with transportation to
\nselective employment, we find that if, as in
\nthis case, the employee’s acceptance of
\npre-injury employment was contingent on
\nemployer-provided transportation to and from
\nwork and suitable alternatives are not
\navailable, then the employee is justified in
\nrefusing light duty employment if the
\nemployer refuses to provide transportation.
\nII. ANALYSIS
\n On appeal, employer contends the commission erred in
\nfinding claimant was justified in refusing the offered
\nlight-duty position that was within his residual capacity. For
\nthe following reasons, we disagree and affirm the commission’s
\ndecision.
\n “To support a finding of refusal of selective employment
\n‘the record must disclose (1) a bona fide job offer suitable to
\nthe employee’s capacity; (2) [a job offer that was] procured for
\nthe employee by the employer; and (3) an unjustified refusal by<\/p>\n
You were previously afforded transportation
\nwhen on full duty because your job duties
\nrequired you report to different job
\nlocations. The job in the warehouse is a
\nrestricted duty position that does not
\nrequire traveling during your work shift,
\nthus you will not be provided
\ntransportation.<\/p>\n
– 3 –
\nthe employee to accept the job.'” James v. Capitol Steel
\nConstr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 489 (1989)
\n(quoting Ellerson v. W.O. Grubb Steel Erection Co., 1 Va. App.
\n97, 98, 335 S.E.2d 379, 380 (1985)).
\n There is ample credible evidence in the record to support
\nthe commission’s finding that the employer met its burden
\nregarding the first two elements.2 The employer found for the
\nemployee a bona fide position suitable to claimant’s capacity.
\nThus, the burden shifted to claimant to prove his refusal of
\nthat bona fide job offer was justified. Talley v. Goodwin
\nBrothers Lumber Co., 224 Va. 48, 294 S.E.2d 818 (1982).
\n This appeal does not present a case of
\nconflicting evidence or a dispute concerning
\nthe commission’s findings of fact. When the
\nissue is the sufficiency of the evidence and
\nthere is no conflict in the evidence, the
\nissue is purely a question of law. This
\nCourt is not bound by the legal
\ndeterminations made by the commission.
\n“[W]e must inquire to determine if the
\ncorrect legal conclusion has been reached.”
\nCibula v. Allied Fibers & Plastics, 14 Va. App. 319, 324, 416
\nS.E.2d 708, 711 (1992) (internal citations omitted).
\n “To support a finding of justification to refuse suitable
\nselective employment, ‘the reasons advanced must be such that a
\nreasaonable person desirous of employment would have refused the<\/p>\n
2 The commission found claimant waived any challenge to the
\nfirst two elements and, therefore, waived his right to challenge
\nthe commission’s finding that the employer sustained its burden
\non these elements. The claimant does not challenge this finding
\non appeal.
\n– 4 –
\noffered work.'” Food Lion v. Lee, 16 Va. App. 616, 619, 431
\nS.E.2d 342, 344 (1993) (quoting Johnson v. Virginia Employment
\nComm’n, 8 Va. App. 441, 452, 382 S.E.2d 476, 481 (1989)). In
\nthe case at bar, claimant argued that he was unable to accept
\nthe offered position because (1) he did not have transportation
\nto the place of employment and (2) employer breached its
\nagreement to provide transportation. Under the circumstances
\nrepresented in this record, we find claimant’s refusal to accept
\nthe selective employment position was justified and, thus,
\nclaimant met his burden of proof.
\n We agree with the commission’s assertion that an employer
\ndoes not have the general duty to provide transportation for its
\nemployees; therefore, the failure of an employer to provide
\ntransportation to selective employment will not provide a
\nsufficient basis for an employee’s refusal of that employment
\noffer. See generally Klate Holt Co. v. Holt, 229 Va. 544, 547,
\n331 S.E.2d 446, 448 (1985). In the case at bar, however, the
\nemployer had a contractual obligation to provide claimant with
\ntransportation which arose from the employment agreement between
\nthe parties.<\/p>\n
Claimant’s unrebutted testimony proved that he was ready
\nand willing to return to light-duty work for employer, but for
\nthe lack of employer-provided transportation to which he was
\nentitled under the terms of his employment contract. It was
\nundisputed that employer knew claimant required
\n– 5 –
\nemployer-provided transportation when employer hired him and
\nthat such transportation was a prerequisite to his acceptance of
\nthe pre-injury job. But for employer’s covenant to provide
\nclaimant with transportation for so long as he worked for it,
\nclaimant would not have quit his previous job. Employer
\nprovided claimant with transportation to and from work up until
\nthe time of his compensable injury by accident. The change to
\nselective employment does not vitiate employer’s original
\ncontract obligation to provide claimant with transportation.
\nTherefore, when employer offered claimant a selective employment
\nposition without providing a means of transportation, claimant
\nwas justified in refusing the offer. “The condition preventing
\n. . . acceptance of selective employment need not be physical.”
\nMoran v. R & W Constr., Inc., 21 Va. App. 195, 199, 462 S.E.2d
\n919, 921 (1995). The employer breached its contractual
\nobligation to claimant to provide him transportation. See
\ngenerally Sea-Land Service, Inc. v. O’Neal, 224 Va. 343, 297
\nS.E.2d 647 (1982) (issues relating to the establishment and
\nbreach of employment contracts).
\n We are not persuaded by employer’s contention that the
\nSupreme Court of Virginia’s decision in Holt, 229 Va. 544, 331
\nS.E.2d 446, controls and requires a different decision in this
\ncase. That case is clearly distinguishable.<\/p>\n
In Holt, the employee, a mail clerk released to light-duty
\nemployment, refused to accept the selective employment position
\n– 6 –
\nprocured by the employer and approved by her physician. She
\nrefused the position because she did not want to work in the
\nselective position and did not own a motor vehicle in which to
\ntransport herself to the job assignment. The commission found
\nthat the employee was justified in refusing the offered position
\ndue (1) to the transportation problem and (2) because the
\nemployer failed to make arrangements to provide transportation
\nin light of the fact that the job required the employee to
\nprovide her own means of transportation. The Supreme Court
\nreversed the commission’s decision.
\nThe employee’s outright refusal to accept
\nthe security guard job offers rendered
\nconsideration of the transportation aspect
\nof the employment irrelevant. By
\nunconditional rejection of the offers, the
\nemployee demonstrated an unwillingness to
\naccept employment within her residual
\ncapacity. Her unilateral action thwarted
\nany further efforts by . . . [the employer]\nto assist her in solving her transportation
\ndilemma.
\nId. at 547, 331 S.E.2d at 448. Moreover, there was no evidence
\nin Holt that employer had a contractual obligation to provide
\ntransportation.
\n Under the facts of this case, the employer is bound by its
\ncontractual obligation to provide transportation to claimant,
\nwhich the transition to selective employment does not alter.
\nThe employer’s breach of its obligation provided adequate
\njustification for claimant’s refusal of selective employment.<\/p>\n
– 7 –
\n Accordingly, we affirm the decision of the commission.
\nAffirmed.<\/p>\n
A Copy,<\/p>\n
Teste:<\/p>\n
Cynthia L. McCoy, Clerk<\/p>\n
By:<\/p>\n
Deputy Clerk<\/p>\n
– 8 –<\/p>\n","protected":false},"excerpt":{"rendered":"
WCC did not error in finding Jerry Lang job refusal justified<\/p>\n","protected":false},"author":12,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-17316","post","type-post","status-publish","format-standard","hentry","category-uncategorized","always_free"],"_links":{"self":[{"href":"https:\/\/valawyersweekly.com\/fulltext-opinions\/wp-json\/wp\/v2\/posts\/17316"}],"collection":[{"href":"https:\/\/valawyersweekly.com\/fulltext-opinions\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/valawyersweekly.com\/fulltext-opinions\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/valawyersweekly.com\/fulltext-opinions\/wp-json\/wp\/v2\/users\/12"}],"replies":[{"embeddable":true,"href":"https:\/\/valawyersweekly.com\/fulltext-opinions\/wp-json\/wp\/v2\/comments?post=17316"}],"version-history":[{"count":0,"href":"https:\/\/valawyersweekly.com\/fulltext-opinions\/wp-json\/wp\/v2\/posts\/17316\/revisions"}],"wp:attachment":[{"href":"https:\/\/valawyersweekly.com\/fulltext-opinions\/wp-json\/wp\/v2\/media?parent=17316"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/valawyersweekly.com\/fulltext-opinions\/wp-json\/wp\/v2\/categories?post=17316"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/valawyersweekly.com\/fulltext-opinions\/wp-json\/wp\/v2\/tags?post=17316"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}