COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

GUY C. EAVERS EXCAVATING CORPORATION 

AND 

VALIANT INSURANCE COMPANY MEMORANDUM OPINION*

 PER CURIAM 

v. Record No. 2748-96-3 APRIL 22, 1997 

JAMES HULAN WALDRON 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (John P. Grove; John C. Brownlee; Woods, 

Rogers & Hazlegrove, on brief), for 

appellants. 

 (Terry L. Armentrout; Armentrout & 

Armentrout, on brief), for appellee. 

 Guy C. Eavers Excavating Corporation and its insurer 

(hereinafter collectively referred to as "employer") contend that 

the Workers' Compensation Commission erred in (1) holding 

employer responsible for the cost of certain medical treatment 

rendered to James Hulan Waldron for back complaints; and (2) 

finding that employer failed to prove the light-duty job offered 

to Waldron was suitable to his 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. Rule 5A:27. 

 I. Medical Expenses

 Waldron sustained a compensable injury on December 13, 1993. 

 

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

designated for publication. 
 2 

 In an opinion dated February 22, 1995, a deputy commissioner 

found that Waldron's preexisting back condition was aggravated by 

the accident. The employer did not appeal from the award 

granting Waldron temporary partial disability for his back 

injury. 

 In December 1995, Waldron filed a claim alleging that the 

employer had not paid medical bills for his back injuries. 

 In holding employer responsible for the cost of medical 

treatment rendered to Waldron by Dr. John C. MacIlwaine and Dr. 

John A. Jane for Waldron's back complaints, the commission found 

as follows: 

 The contested charges appear to relate to 

medical treatment by Dr. . . . MacIlwaine, 

the treating orthopedic/hand surgeon, and Dr. 

. . . Jane, neurosurgeon, who evaluated 

[Waldron] upon referral by Dr. MacIlwaine. 

We find that treatment by Dr. MacIlwaine, or 

upon his referral, for the back complaints is 

clearly the responsibility of the employer, 

based upon the Opinion of February 22, 1995 

 . . . . The referrals were either for 

medical treatment or evaluation of the 

industrial injury by other physicians. 

 As to Dr. Jane, we note his various 

reports cited by counsel for the employer to 

the effect that [Waldron] suffers from lumbar 

stenosis of a developmental type and 

questioning the effect of the industrial 

injury on this preexisting condition, as set 

forth in his report of March 10, 1996. 

However, this comes after the determination 

of a causal connection between the 

preexisting condition and aggravation by the 

industrial accident has been made and has 

become final. The same opinion expressed in 

Dr. Jane's other reports is rejected for the 

same reason. . . . We also note the 

handwritten note, possibly by him, that: "He 

has osteoarthritis - not injury associated." 
 3 

 There is no indication that this is a 

condition which has developed since the 

Opinion of February 22, 1995. 

 Because employer did not appeal the commission's February 

22, 1995 opinion, the commission's decision regarding the 

causation of Waldron's back complaints became final and 

conclusive. In Graham v. Virginia Elec. & Power Co., 230 Va. 

273, 337 S.E.2d 260 (1985), the Virginia Supreme Court ruled as 

follows: 

 "The true test of the conclusiveness of 

a former judgment with respect to particular 

matters is identity of issues. If a 

particular point or question is in issue in 

the second action, and the judgment will 

depend on the determination of the particular 

point or question, a former judgment between 

the same parties will be final and conclusive 

in the second [action] if that same point was 

in issue and adjudicated in the first suit." 

Id. at 277, 337 S.E.2d at 263 (citation omitted) (alteration in 

original). 

 The causation issue in this claim is the same issue that the 

commission adjudicated in its February 22, 1995 opinion. The 

issue is raised by the same parties. Therefore, the commission 

did not err in finding that its February 22, 1995 ruling 

continued to bind the parties. 

 Moreover, the medical evidence supports the commission's 

finding that Dr. Jane's reports did not indicate that Waldron's 

back complaints arose from conditions that developed after the 

February 22, 1995 opinion. Accordingly, the commission did not 

err in holding employer responsible for the medical treatment 
 4 

rendered by both doctors for Waldron's back complaints. 
 5 

 II. Selective Employment

 On appeal, we view the evidence in the light most favorable 

to the party prevailing below. See R. G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). So 

viewed, the evidence proved that Dr. Shepard Hurwitz treated 

Waldron's compensable ankle injury upon a referral by Dr. 

MacIlwaine. According to Dr. Hurwitz's November 3, 1995 physical 

capabilities evaluation, Waldron could operate a car but was 

precluded from operating a truck, crane, or tractor. The 

light-duty job offered to Waldron required that he drive a pickup 

truck. 

 "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) (citation 

omitted) (alteration in original). Unless we can say as a matter 

of law that employer's evidence sustained its 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). 

 In denying employer's application to suspend Waldron's 

benefits, the commission found that the medical restrictions 

placed upon Waldron by Dr. Hurwitz precluded Waldron from 
 6 

operating a truck. Because the light-duty job required that 

Waldron drive a pickup truck, the commission found that 

employer's evidence did not establish that the job fell within 

Waldron's medical restrictions. These findings are supported by 

credible evidence. In addition, as the commission correctly 

noted, no evidence showed that employer obtained Dr. Hurwitz's 

approval of the light-duty job offered to Waldron. 

 In its role as fact finder, the commission was entitled to 

reject employer's argument that operating a pickup truck was 

sufficiently similar to operating a car. Employer failed to 

present evidence of the size of the truck and whether it would be 

equipped with an automatic or manual transmission. The size of 

the truck, the type of seat in the truck, and the presence of 

other equipment in the truck, such as a clutch, were all relevant 

to the issue whether the impact of the truck on Waldron was 

greater than that of a car. Based upon this record, we cannot 

find as a matter of law that employer's evidence proved that the 

light-duty job offered to Waldron was suitable to his residual 

capacity. 

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

 Affirmed.