COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Senior Judge Cole 

Argued at Richmond, Virginia 

J. C. PENNEY COMPANY 

and 

TRAVELERS INSURANCE COMPANY 

v. Record No. 0631-95-2 MEMORANDUM OPINION* BY 

 JUDGE JERE M. H. WILLIS, JR. 

NIKI COSTIANIS FEBRUARY 13, 1996 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 William Orr Smith, for appellants. 

 Bruce K. Billman, for appellee. 

 On appeal from an award of compensation to Niki Costianis, 

J. C. Penney Company and Travelers Insurance Company (J. C. 

Penney) contend that (1) no credible evidence supports the 

commission's finding that Ms. Costianis was justified in refusing 

the selective employment offered by J. C. Penney and (2) the 

commission erred in relying on Setliff v. Tultex Corp., 68 O.I.C. 

160 (1989). We disagree and affirm the commission's decision. 

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

to the party prevailing below. Crisp v. Brown's Tysons Corner 

Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 196, 196 (1986). 

The findings of the commission, if based on credible evidence, 

are conclusive and binding on this Court. Morris v. Badger 

Powhatan/Figgie Int'l Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 

 

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

designated for publication. 
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877 (1986). 

 On May 7, 1992, Ms. Costianis sustained a compensable injury 

by accident arising out of and in the course of her employment by 

J. C. Penney. Ms. Costianis suffered injuries to her right arm, 

shoulder, right hip, pelvis, and sacrum when she fell from a 

moveable ladder. As a result of her injuries, she suffers from 

urinary incontinence. 

 Ms. Costianis was initially treated for the incontinence by 

Dr. Bradley Gray, a urologist. After seven months of treatment, 

Dr. Gray reported to Dr. Marriott Johnson, her treating 

orthopaedic surgeon, that her condition would not improve and 

that she needed to void every twenty to thirty minutes. Ms. 

Costianis was then referred to Dr. William Steers at the 

University of Virginia Health Sciences Center. After evaluating 

her condition, he reported to Dr. Johnson on January 24, 1994, 

that Ms. Costianis's "urinary urgency, frequency and urge 

incontinence, [was] most likely on the basis of nerve injury. 

Certainly, she represents a more severe case of urge 

incontinence. This incontinence is triggered by activity 

especially in the lower limbs." 

 On January 25, 1994, Dr. Johnson notified J. C. Penney that 

he thought Ms. Costianis should try returning to work, on a parttime trial basis, four hours a day, three days a week. Dr. 

Steers agreed, but noted that Ms. Costianis required access to a 

toilet facility and privacy. 
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 On March 28, 1994, J. C. Penney sent Ms. Costianis the 

following offer of part-time work: 

 This is to advise you that your employer is 

offering work within the restrictions 

recommended by Dr. Johnson on 02-17-94. You 

will be working four hours a day, three days 

a week, to begin Monday, April 11, 1994. 

Please report to Sabra Roberts, Manager, at 

your usual J. C. Penney store at 10:00 a.m. 

on that date. If you have questions, please 

feel free to call Sabra prior to that time. 

Ms. Costianis declined the offer. She testified that she did so 

because she knew from her experience that, due to her need to 

leave the floor frequently, she could not perform the job 

effectively. She testified that when she is active, she must 

void every ten to twenty minutes. When she is relaxing, she must 

void every thirty to sixty minutes. Her testimony was 

corroborated by the medical and physical therapy records. 

 Josephine Sumpolec, Ms. Costianis's personnel supervisor, 

testified that J. C. Penney was willing to accommodate Ms. 

Costianis's special needs. However, she testified that she never 

communicated this fact to Ms. Costianis. 

 J. C. Penney contends that Ms. Costianis should have tried 

the tendered employment and that her refusal of the job without a 

trial was unjustified. See Thompson v. Hampton Institute, 64 

O.I.C. 313, 315 (1985). 

 Virginia Code § 65.2-510 provides, in pertinent part: 

 If an injured employee refuses employment 

procured for him suitable to his capacity, he 

shall only be entitled to the benefits 

provided for in § 65.2-603 during the 

continuance of such refusal, unless in the 
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opinion of the Commission such refusal was 

justified. 

"A finding of unjustified refusal must be based on '(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.'" United Parcel Service v. 

Godwin, 14 Va. App. 764, 767, 418 S.E.2d 910, 912 (1992) 

(citations omitted). The employer has the burden of proving 

these elements in order to obtain relief under Code § 65.2-510. 

Ellerson v. W.O. Grubb Steel Erection Co., 1 Va. App. 97, 102, 

335 S.E.2d 379, 380 (1985). 

 In denying J. C. Penney's application, the commission made 

the following findings: 

 Upon review of the record, we conclude that 

the employee's refusal of selective 

employment was justified. Although the 

employer presented evidence that it was 

willing [to] address the claimant's special 

needs, this was not communicated to the 

claimant. From the claimant's perspective, 

the employer was offering her pre-injury job 

without any modification. Because, as noted 

by claimant's urologist, Costianis required 

frequent bathroom access, the job offer was 

inconsistent with the claimant's work 

restrictions. Consequently, we find that the 

employer did not make a bona fide offer of 

selective employment within the employee's 

remaining capacity. 

 The commission's findings are supported by the medical 

record, Ms. Costianis's testimony, and the testimony of Ms. 

Sumpolec. The commission considered Ms. Costianis's 

incontinence, her knowledge of the requirements of a sales job, 
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her physician's qualified release, and the lack of any 

communication to her that J. C. Penney's could accommodate her 

needs. 

 We find no merit in J. C. Penney's argument that the 

commission erred in relying on Setliff v. Tultex, 68 O.I.C. 160 

(1989). Setliff was not cited by the commission to support its 

holding that J. C. Penney failed to make a bona fide offer of 

selective employment to Ms. Costianis. 

 The decision of the commission is affirmed. 

 Affirmed.