Opinion
49863 No. 1949-93-4
Decided January 17, 1995
Craig A. Brown (Ashcraft Gerel, on brief), for appellant.
Joseph C. Veith, III, for appellees.
SUMMARY
Employee appealed the decision of the Workers' Compensation Commission holding that he could not cure an unjustified refusal to accept selective employment. The Court initially ruled that he could cure his refusal if elsewhere he found and accepted employment comparable to that he refused. The Court also held that the employee, as a matter of law, had not cured his prior unjustified refusal.
The Court of Appeals, upon rehearing, held that the record did not support its initial finding that, as a matter of law, employee had failed to cure his refusal. Therefore, the Court remanded the matter to the commission for further findings of fact.
Reversed and remanded.
OPINION
UPON A REHEARING
We granted rehearing to Robert Charles Christiansen, Jr., from our prior opinion, Christiansen v. Metro Building Supply, Inc., 18 Va. App. 721, 447 S.E.2d 519 (1994), in which we held that Christiansen could cure an unjustified refusal to accept selective employment if elsewhere he found and accepted employment comparable to that he refused. We noted that C P Telephone Co. v. Murphy, 12 Va. App. 633, 406 S.E.2d 160 (1991), aff'd en banc, 13 Va. App. 304, 411 S.E.2d 444 (1991), relied upon by the commission for the proposition that the unjustified refusal could not be cured, subsequently had been modified by Virginia Wayside Furniture, Inc. v. Burnette, 17 Va. App. 74, 435 S.E.2d 156 (1993).
Specifically, we granted rehearing to reconsider Part III of our opinion in which we held that Christiansen, as a matter of law, had not cured his prior unjustified refusal to accept selective employment under our holding in Burnette.
The commission decided that Christiansen could not cure his unjustified refusal of selective employment and, therefore, did not reach the issue of whether he had done so. Because we hold that he could do so, the commission must determine whether, in fact, he cured his prior unjustified refusal.
The respective salaries of the selective employment refused and of that accepted were questions of fact that should have been made by the commission, had it reached the issue. We are now persuaded that the assumption in our prior opinion regarding salaries was incorrect, and that upon this record we cannot decide that issue as a matter of law. Therefore, we remand the case to the commission for it to make findings of fact and conclusions of law concerning whether under Burnette Christiansen cured his prior unjustified refusal by obtaining employment comparable to the selective employment he refused.
Sections I and II of the prior opinion remain as stated therein.
Reversed and remanded.
Willis, J., and Elder, J., concurred.