COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Frank 

CLARENCE W. TRUAX, JR. 

 MEMORANDUM OPINION*

v. Record No. 0137-00-4 PER CURIAM 

 JULY 18, 2000 

WILLIAM A. HAZEL, INC. AND 

 ROYAL INSURANCE COMPANY OF AMERICA 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Clarence W. Truax, Jr., pro se, on brief). 

 (Cathleen P. Welsh; Wharton, Aldhizer & 

Weaver, P.L.C., on brief), for appellees. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication. 

 Clarence W. Truax, Jr. (claimant) contends that the 

Workers' Compensation Commission (commission) erred in finding 

that he (1) unjustifiably refused selective employment offered 

to him by William A. Hazel, Inc. (employer) on September 1, 

1998; (2) unjustifiably refused necessary medical treatment by 

Dr. Roger V. Gisolfi on September 29, 1998; and (3) was not 

entitled to a change in treating physicians. 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. 
I. 

 "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.'" James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 489 (1989) 

(quoting Ellerson v. W.O. Grubb Steel Erection Co., 1 Va. App. 

97, 98, 335 S.E.2d 379, 380 (1985)). Factual findings made by 

the commission will be upheld on appeal if supported by credible 

evidence. See id. at 515, 382 S.E.2d at 488. 

 "When the employer establishes that selective employment 

was offered to an employee that was within the employee's 

capacity to work, the employee bears the burden of establishing 

justification for refusing the offered employment." 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. (citation omitted). Unless we can say as a 

matter of law that claimant's evidence sustained his burden of 

proof, 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). 

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 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). 

Here, it was undisputed that claimant's treating physician, Dr. 

Richard Gisolfi, released claimant to light-duty work effective 

August 24, 1998, with no restrictions upon his ability to drive. 

In addition, claimant admitted that employer contacted him and 

offered him selective employment in its Chantilly, Virginia 

office to begin on September 1, 1998. Claimant failed to report 

for the job. Before the commission, claimant did not dispute 

that the selective employment was within his restrictions. 

However, he contended that he was justified in refusing the job 

because he could not drive to work due to his pain. However, 

the evidence proved that Dr. Gisolfi made it clear at the time 

of claimant's refusal that claimant was physically capable of 

driving to work and that his medication would not prohibit him 

from driving. 

 The medical records and Dr. Gisolfi's opinions provide 

credible evidence to support the commission's finding that the 

selective employment offered to claimant was within his physical 

capacity. Moreover, based upon this record, we cannot find as a 

matter of law that claimant's evidence proved that he was 

justified in refusing such employment. 

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II. 

 The evidence proved that claimant knew he had an 

appointment with Dr. Gisolfi on September 29, 1998, which he 

failed to attend. Claimant's reason for failing to attend the 

appointment, that he could not drive, was not supported by his 

treating physician, who opined that there was no medical reason 

why claimant could not drive to the appointment. Moreover, 

although employer indicated that it would not provide 

transportation for claimant to the appointment, there was no 

evidence that employer refused to pay claimant for his 

transportation costs to attend the appointment, its only 

obligation under the Workers' Compensation Act and the 

circumstances of this case. The evidence showed that claimant 

never inquired of employer whether it would reimburse his 

transportation costs. 

 Based upon this record, we cannot find as a matter of law 

that claimant proved he was justified in failing to attend the 

appointment with Dr. Gisolfi. 

III. 

 The deputy commissioner denied claimant's request for a 

change in treating physicians. Claimant did not argue on review 

before the full commission that the deputy commissioner erred in 

that determination. Decisions of a deputy commissioner that are 

not reviewed by the full commission cannot be brought before 

this Court. See Southwest Architectural Prods., Inc. v. Smith, 

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4 Va. App. 474, 478, 358 S.E.2d 745, 747 (1987); Rule 5A:18. 

Accordingly, we cannot address this issue on appeal. 

 For these reasons, we affirm the commission's decision. 

Affirmed.

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