 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Shawnee Management Corp. v. Hamilton11/4/1997
per day at the time she first saw Dr. Kostuik in December, 1994. Dr. Zoller wrote in his examination notes on February 22, 1995 that claimant had reduced her smoking to ten cigarettes per day. At the hearing on June 8, 1995, claimant testified that she was smoking about a quarter of a pack per day and was still continuing her effort to "try and stop altogether." In addition, the record fails to establish that claimant rejected medical treatment that would have expedited her complete abandonment of cigarettes or that employer offered such treatment. In light of claimant's long history with cigarettes, the sizable reduction in her smoking, and her testimony that she had not abandoned her current effort to quit, credible evidence supports the commission's finding that claimant had not "refused" to comply with her physicians' directives to stop smoking.
III.
REFUSAL OF SELECTIVE EMPLOYMENT
Employer also argues that claimant unjustifiably refused selective employment when she declined the cashier position offered to her in September, 1993. See Klate Holt Co. v. Holt, 229 Va. 544, 545, 331 S.E.2d 446, 447 (1985); Talley v. Goodwin Bros. Lumber Co., 224 Va. 48, 52, 294 S.E.2d 818, 820 (1982). We disagree.
Relying on Dr. Zoller's revised medical opinion, the commission concluded that claimant was totally disabled as of December 19, 1994 and ordered benefits resumed at that date. Based on this determination, no employment offered by employer could possibly be suitable for claimant because claimant has no residual capacity to work.
Because the commission held that claimant is totally disabled, which employer does not contest on appeal, we hold that this issue of selective employment is now moot. Once a controversy between litigants ceases to exist, "it is the duty of every judicial tribunal not to proceed to the formal determination of the apparent controversy . . . ." Hankins v. Town of Va. Beach, 182 Va. 642, 643-44, 29 S.E.2d 831, 832 (1944).
For the foregoing reasons, we affirm the commission's award.
Affirmed.
|