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Shawnee Management Corp. v. Hamilton11/4/1997
Argued at Richmond, Virginia
UPON A REHEARING EN BANC
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Shawnee Management Corporation (employer) appeals an order of the Workers' Compensation Commission awarding temporary total disability benefits to Rhonda C. Hamilton (claimant). Employer contends that the commission erred when it concluded that claimant's failure to entirely cease smoking cigarettes so that she could undergo back surgery was not a "refusal" of medical care under Code ยง 65.1-603(B). Employer also contends that the commission erred when it concluded that claimant justifiably refused an offer of selective employment. A panel of this Court reversed the commission's award, holding that claimant's failure to stop smoking completely as directed by her physicians was an unjustified refusal of the back surgery she needed in order to return to work. See Shawnee Management Corp. v. Hamilton, 24 Va. App. 151, 480 S.E.2d 773 (1997). We granted claimant a rehearing en banc. For the reasons that follow, we affirm the commission's award of benefits.
I.
FACTS
In October, 1991, claimant lived in Winchester, Virginia and was employed as a crew person at a Hardee's Restaurant managed by employer. Claimant slipped on a wet floor in the restaurant and injured her back. The parties entered into a memorandum of agreement for temporary total disability benefits. At the time of her accident, claimant had smoked cigarettes regularly for twenty years.
In January, 1993, claimant's treating physician, Dr. Zoller, performed a "lumbar fusion" operation on claimant to treat her back injury. Upon admission to the hospital for the surgery, claimant ceased smoking cigarettes entirely and maintained her abstinence from smoking for about eighteen months. About two months after her surgery, claimant moved from Winchester to Manassas, Virginia.
Claimant's recovery from the back surgery was not smooth. During the surgery, she suffered "fairly significant brachioplexus injuries" to both of her arms due to the positioning of her body during the procedure. Her recovery from these injuries took several months. In addition, while rehabilitating her back, claimant experienced intermittent but severe pain in her back, buttocks, and legs.
On July 20, 1993, Dr. Zoller wrote to employer's insurer that claimant "could be returned to some light duty work." Dr. Zoller set forth numerous restrictions on any work performed by claimant, including a limit on claimant's driving to "20 miles, or 30 minutes, continuously, and no more than twice daily." On August 11, employer sent a job description to Dr. Zoller regarding a position it planned to offer claimant as a cashier at a Hardee's Restaurant in Winchester. The job description included several accommodations to match the restrictions on claimant's work imposed by Dr. Zoller. Dr. Zoller approved the job description on August 25. On September 9, claimant declined employer's offer to return to work in the modified cashier's position because it required a 90 minute commute each way from Manassas to Winchester.
On September 13, 1993, employer filed an application for a hearing to suspend claimant's disability benefits on the ground that she had "refused selective employment within physical capacity." The commission subsequently suspended claimant's benefits, but it did so on the ground that claimant had failed to keep it informed of her current mailing address.
In December, 1993, claimant moved back to Winchester. Sometime in mid-1994, she resumed smoking cigarettes to "calm her nerves" when her son "got in trouble." Her consumption of cigarettes increa
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