COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Annunziata and Senior Judge Duff 

Argued at Alexandria, Virginia 

CITY OF HAMPTON 

v. Record No. 0627-95-4 MEMORANDUM OPINION* BY 

 JUDGE ROSEMARIE ANNUNZIATA 

RICHARD WOODROW HANCOCK OCTOBER 31, 1995 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 

 Joyce A. Melvin-Jones, Deputy City Attorney 

(Office of the City Attorney, on brief), for 

appellant. 

 Michael A. Kernbach (Jack T. Burgess & 

Associates, P.C., on brief), for appellee. 

 The employer, City of Hampton ("City"), appeals the Virginia 

Workers' Compensation Commission's decision to award the 

claimant, Richard Woodrow Hancock ("Hancock"), compensation for 

an occupational disease. The City alleges (1) that Hancock 

failed to market his residual work capacity by filing for 

retirement; and (2) that any award Hancock receives should be 

offset by his current wages. For the reasons that follow, we 

reject the City's contentions and affirm the commission's award. 

 On September 9, 1993, Hancock's physician advised him to 

stop working as a firefighter, having concluded that his job was 

a "contributing factor" to his hypertension. The City does not 

dispute that Hancock is entitled to the presumption provided by 

Code § 65.2-402 that a firefighter's hypertension is a 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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compensable occupational disease suffered in the line of duty. 

In its brief, the City argued that the evidence overcame the 

statutory presumption. However, at oral argument, the City 

conceded that Hancock's employment caused his condition. 

 After his diagnosis, Hancock left work on approved leave. 

Hancock then applied for disability retirement in September 1993 

and filed a workers' compensation claim later that fall. In 

November 1993, Hancock moved to Ocean City, Maryland and began 

working with a heating and air conditioning company. Hancock 

switched to leave without pay status when his sick leave ran out 

in February 1994. As of the hearing date, Hancock's retirement 

application had not been approved, and the City had not notified 

Hancock that his employment had terminated. Hancock testified 

that he remained a City employee on leave without pay. 

 Citing Code § 65.2-510, the City argues that Hancock is not 

entitled to continuing wage benefits because, by filing for 

retirement, he removed himself from the labor market. We 

disagree. 

 Code § 65.2-510 terminates continued benefits paid to an 

employee who refuses employment procured for him suitable to his 

capacity. E.g. Thompson v. Hampton Institute, 3 Va. App. 668, 

670, 353 S.E.2d 316, 316-17 (1987) (addressing former Code 

§ 65.1-63 recodified as § 65.2-510). In order to continue 

receiving workers' compensation benefits, a claimant must make a 

reasonable effort to market his remaining capacity to work. 
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Herbert Brothers v. Jenkins, 14 Va. App. 715, 717, 419 S.E.2d 

283, 284 (1992); National Linen Service v. McGuinn, 8 Va. App. 

267, 269, 380 S.E.2d 31, 33 (1989). In determining a claimant's 

"reasonable efforts," the commission may consider his voluntary 

removal from the job market. McGuinn, 8 Va. App. at 272 n.5, 380 

S.E.2d at 34 n.5. 

 However, in order to support a finding under this section, 

"the record must disclose (1) a bona fide job offer suitable to 

the employee's capacity; (2) procured for the employee by the 

employer; and (3) an unjustified refusal by the employee to 

accept the job." Ellerson v. Grubb Steel Erection Co., 1 Va. 

App. 97, 98, 335 S.E.2d 379, 380 (1985) (decided under former 

§ 65.1-63). The employer bears the burden of showing that it 

procured for the employee a job offer within the employee's 

residual capacity. Ellerson, 1 Va. App. at 102, 335 S.E.2d at 

382. 

 We find that the evidence in this case does not meet these 

requirements. It is undisputed that the City never offered 

Hancock a job within his remaining work capacity. The City 

argues that it was unable to offer Hancock a job because he had 

filed for retirement, thereby removing himself from the job 

market. However, at the date of the hearing, Hancock's 

application for retirement had not been approved. Indeed, 

approval of Hancock's application for disability retirement was 

never certain. Hancock's acts did not foreclose the City from 
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offering him alternative work. 

 Finally, the City asks that the Court off-set the claimant's 

award by his current wages. However, the City failed to show how 

the award was computed and how the award should be off-set. 

"Since this argument was not fully developed in the appellant's 

brief, [the Court] need not address this question." Buchanan v. 

Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 238 (1992) (citing 

Rogers v. Rogers, 170 Va. 417, 421, 196 S.E. 586, 588 (1938)). 

"Statements unsupported by argument, authority, or citations to 

the record do not merit appellate consideration." Id. 

 Accordingly, for the reasons stated, the award of the full 

commission is affirmed. 

Affirmed.