COURT OF APPEALS OF VIRGINIA
Present: Judges Hum phreys, Haley and Petty Argued at Salem, Virginia

JAMES HENRY MULLINS MEMORANDUM OPINION * BY v. Record No. 1728-06-3 J UDGE JAMES W. HALEY, JR. JUNE 5, 2007 BIG LAUREL MI NING AND NATIONAL UNION FIRE INSU RANCE COMPANY OF PITTSBURGH

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION D. Allison Mullins (Lee & Phipps, P. C., on brief), for appellant. Brian J. Rife (Penn, Stuart & Eskridge, on brief), for appellees.
James Henry Mullins (“appellan t”) maintains the evid ence is insufficie nt to support the decision of the Workers’ Compen sation Commission (“the commission”): (1) th at he unjustifiably refused selective employment offered by his employe r; and (2) that he faile d to make a reasonable effort to market his residual work capacity after le aving employment. We find the evidence sufficient to support the first de termination by th e commission, and, consis tent with the undisputed facts, conclude we need not address the second. I. FACTS Appellant injured his left shou lder on April 13, 2004, while working as a roof-bolter in a coal mine. That work involved dr illing an overhead hole in the mine roof, inse rting a resi n tube in

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - the hole, and then wrenching a roof bolt into the resin. Necessarily, the work required one to reach overhead and lift more than 25 pounds. By agreement with his employ er, Big Laurel Mining (“employer”), appellant was awarded temporary total and temporary pa rtial disability benefits for va rious periods of time, ending December 14, 2004. On June 13, 2005, appellant filed a claim alleging a change in condition and seeking benefits from Ap ril 25, 2005, and contin uing. Employer defend ed on the grounds that appellant had refused selective em ployment and failed to market hi s residual work capacity. A hearing was held before a deputy commissioner on September 6, 2005. Th e evidence adduced was essentially uncontradicted. Reports from appellant’s attending physicia n, Dr. T. Lisle Whitman (“Dr. Whitman”), stated: (1) on January 19, 2005, appellant coul d return to work, restricted by working on ly “at chest level and below,” and lifting “no mo re than 5 pounds with the left arm”; (2) on February 14, 2005, appellant had “good strength in the arms. Ther e are no areas of tend erness,” and the earlier restrictions were continued; (3) on March 23, 2005: “[ F]ull active range of mo tion, good strength below the shoulder level,” and appellant could “work up to shoulder level in any job”; and, (4) on April 6, 2005: “Permanent restri ctions include no work over shoulder level with the left arm, no lifting greater than 25 po unds with the left arm.” In this final report, Dr. Whitman also advised, “I cannot find a physical cause for hi s current complaints . . . .” By letter dated Au gust 26, 2005, Dr. Whitman stated that he found no “objective basis for [appellant’s ] current complain ts of pain.” Charles Barnette (“Barnette”), appellant’s sh ift supervisor, testified that between January 2005, and April 5, 2005, appellant was given work as a “general outside man,” which was not an actual job position, but involved answering phones , checking communicati ons, “clean-up of the change room,” sweeping out the office, etc. On April 5, 2005, Barnette as ked appellant to run the shuttle car. Barnette testified he was aware of appellant’s work re strictions: “No lifting his arm- 3 - above shoulder height on his left arm and nothing over 25 pounds.” On direct examination, the following exchange occurred: Q. [W]as there anything in the shuttle car job that [appellant] tried that would have been over those restrictions? A. No. * * * * * * * Q. And would that job still be availa ble for him to work to this day? A. Yes. Appellant ran the shuttle car off and on for three weeks, but, as will be set forth below, later claimed he could not continue. On April 25, 2005, the last day appellant worked, he was again asked to run the shuttle car but again said he could not do the job. At the hearing, appellant testified he wa s “pretty sure” that Dr. Whitman had a job description for the shuttle car. He stated that he remembered discussing the job with Dr. Whitman on April 22, 2005. Appellant was aw are of his work restrictions, an d testified: “[N]othing over shoulder level . . . and not hing over 25 pounds . . . . [N]o overhead work.” Appellant further testified he could not run the shu ttle car because it was “jus t shaking and vibrating an d jarring me too much and I couldn’t stand the pain . . . .” He later explained, “It shoo k and beat and ba nged too much . . . .” Appellant did no t testify that operating the shuttle car required any actions proscribed by his work restrictions. As noted above, appellant last worked for em ployer on April 25, 20 05. When asked what types of jobs he thereafter sought, appellant responded, “Basically the general stuff around Clintwood, a few other areas. Lumber stores, hard ware stores, even talked to some barber shops and things like that . . . .” No evidence was offered as to the names or locations of these businesses. No evidence was offered as to the t ype of work sought, or if it wa s suitable to appe llant’s residual work capacity. No eviden ce was offered as to the time frame in which these inquiries were made.- 4 - No evidence was offered as to the number of job inquiries, and no evidence was offe red as to any job applications actually filed. It is undisputed that appell ant did not accept any employment subsequent to leaving his job with employer. By decision of November 21 , 2005, the deputy comm issioner found that “the employer did offer [appellant] work . . . as a shuttle car operato r.” The deputy commission er stated, “[T]here is no evidence that operating the shu ttle car exceeded either of the re strictions placed by Dr. Whitman . . . that [appellant] would ha ve had to lift more than 25 pounds with his left arm . . . [or] lift his arms above his shoulder . . . .” Accordingly, the deputy commission er found appellant’s refusal to accept the selective em ployment unjustified. The deputy commissioner th en concluded that appellant had not met his burden of establishing a reasonable bona fide effort to market his residual work capacity. After noting that appellant was a high school graduate, had complete d college courses, and ha d a history of security work and truck driving, the commissioner wrote: Without knowing the particular businesse s that [appellant] contacted, the type of employment th at might have been available at those businesses, and without know ing when these contacts occurred, we have no basis for determin ing when [appellant’s] efforts commenced and ended. Particular ly, we have no way of judging whether these efforts were commen surate with [appellant’s] age, education and wo rk background. By decision of June 16, 2006, the full commission affirm ed the deputy co mmissioner, with one commissioner dissenting. II. ANALYSIS Code § 65.2-510(A) states in pertinent pa rt that “[i]f an inju red employee refuses employment procured for him suitable to his capacity ” benefits are limited “during the continuance- 5 - of such refusal, unless in the opinion of the Commission such refusal was justified .” (Emphasis added). (A) Offer of Selective Employment An employer bears the initial burden of establishing that a claimant unjustifiably refused selective employmen t. Hillcrest Manor Nurs ing Home v. Underwood , 35 Va. App. 31, 37, 542 S.E.2d 785, 788 (20 01). The employer must establish “‘(1) a bona fide job offe r suitable to the employee’s capacity; (2) procured for the employee by the employer; and (3) an unjustified refusal by the employee to acc ept the job.’” Id. (quoting Ellerson v. W.O. Grubb Steel Erection Co. , 1 Va. App. 97, 98, 335 S. E.2d 379, 380 (1985)). The Supreme Court of Virginia has explained that, with respect to whether a job offer is suitable to an injured employee’s residual capac ity, “the tender of limited employment must necessarily be based upon informed medical op inion.” Talley v. Goodw in Bros. Lumber Co. , 224 Va. 48, 52, 294 S.E.2d 818, 820 (1982). The Court continued, “[H]owever, where the attending physician has specified the limitati ons in detail and it is obvious that the proffered job fits these limitations, it may not always be necessary to subm it the job description to the physician for what would be merely a ‘rubber stamp action.’” Id. at 52, 294 S.E. 2d at 820-21. In the instant case, it is undisputed that the employer offered appellant, and continued to offer as of the date of the hearing before the deputy commission er, a job as a shuttle car operator. That work, according to a ll testimony, did not require appellant to lift more than 25 pounds or raise his left arm above shoulder level. Those two work restrictions were the only limitatio ns set forth in the evidence, and were ac knowledged as such by appellant. The physical requirements of the proffered job—as a shuttle car operator—were known to Dr. Whit man. Thus, th e tender of employment was based upon “informed medical opinion” as to appellant’s residual work capacity.- 6 - (B) Refusal of Selective Employment “[W]hen the employer . . . establishes that a jo b offer has been tendered within the residual capacity of the injured em ployee, the burden of pe rsuasion then shifts to the employee to show justification for refusing th e offer of modified work.” Klate Holt Co. v. Holt , 229 Va. 544, 545, 331 S.E.2d 446, 447 (1 985) (citing Talley , 224 Va. at 52, 294 S. E.2d at 820). See also Ballweg v. Crowder Contracting Co. , 247 Va. 205, 209, 440 S. E.2d 613, 615 (1994); Clements v. Riverside Walter Reed Hosp. , 40 Va. App. 214, 222, 578 S.E.2d 814, 817 (2003). As this Court explaine d in Food Lion v. Lee , 16 Va. App. 616, 619 , 431 S.E.2d 342, 344 (1993) (quoting Jo hnson v. Virginia Employment Comm’n , 8 Va. App. 441, 452, 382 S.E.2d 476, 481 (1989)), “[t]o 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.’” Becau se “it is impossible to anticipate and legi slate every potential event” justifying a refusal, De Paul Med. Ctr. v. Brickhouse , 18 Va. App. 506, 508, 445 S.E.2d 494, 495 (1994), and recognizing the statutory deference to “the opinion of the [c]ommission,” when the commission has determined that such an offer wa s made, and was unjustifiab ly refused, we will not reverse those decisions if suppor ted by credible evidence or reasona ble inferences drawn from such evidence. Food Lion , 16 Va. App. at 619, 431 S.E .2d at 344. Such decisi ons are questions of fact. Gallahan v. Free Lance Star Publ. Co. , 37 Va. App. 114, 118, 554 S.E.2d 685, 686 (2001). The only reason given by employee for refusing the job of operating the shuttle car, a job consistent with his restrictions, was that the ca r’s “shaking and banging” caused him pain. His attending physician, however, fo und “no objective basis” for these complaints of pain. We conclude, as did the commission, that em ployer made a bona fide offer of appropriate selective employment and that appellant unjustifi ably refused that employment. Applying the standard of review summarized above, we affirm the decision of the comm ission on this issue.- 7 - (C) Marketing Residual Capacity Despite appellant’s unju stified refusal of empl oyment, he may still be entitled to benefits if he cures that refusal. Clements , 40 Va. App. at 225, 578 S.E.2d at 819. Code § 65.2-510(B) states: If an injured employee cures his unjustified refusal by accepting employment suitable to his capacity at a wa ge less than that originally offered, the employer shall pay or cause to be paid to the injured employee during his partial incapacity . . . a weekly compensation equal to 66 2/3 percen t of the difference between his average weekly wages before his injury and the average weekly wage the employee would have earned by accepting the original proffered light duty employment. Thus, any “cure” of an unjusti fied refusal to accept selective employment is predicated upon an individual “accepting [other] employment suitable to his capac ity.” Here, appellant did not accept any employment following his refusal. Therefore, any inquir y as to whether he reasonably marketed his residual work capa city is rendered moot. See Clements , 40 Va. App. at 226-27, 578 S.E.2d at 819-20; Nat’l Linen Serv. v. McGuinn , 8 Va. App. 267, 270-72 , 380 S.E.2d 31, 33-35 (1989). Applying the appropriate standard of review, noted above, we affirm the decision of the commission. Affirmed.