Hillcrest Manor Nursing Home v. Underwood, 542 S.E.2d 785 (Va. Ct. App. 2001). · Go Syfert
Hillcrest Manor Nursing Home v. Underwood, 542 S.E.2d 785 (Va. Ct. App. 2001). Cases Citing This Book View Copy Cite
“likewise, continued part-time, selective employment, with , following the full-time offer, constituted a partial cure of her prior unjustified refusal of such employment....”
272 citation events (272 in the last 25 years) across 1 distinct court.
Strongest positive: Clements v. Riverside Walter Reed Hospital (vactapp, 2003-04-01)
Treatment trajectory · 2001 → 2026 · click a year to view as-of
2001 2013 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Clements v. Riverside Walter Reed Hospital (6×) also: Cited as authority (rule), Cited "see"
Va. Ct. App. · 2003 · quote attribution · 1 verbatim quote · confidence high
likewise, continued part-time, selective employment, with , following the full-time offer, constituted a partial cure of her prior unjustified refusal of such employment....
discussed Cited as authority (quoted) Jamie Jamar Heyward v. Commonwealth of Virginia
Va. Ct. App. · 2024 · quote attribution · 1 verbatim quote · confidence low
declining to consider an issue on appeal because it was not 'expressly stated' in the questions presented (now assignments of error)
cited Cited as authority (rule) Javier Avila-Rivera v. Excel Masonry, Inc. and State Farm Fire and Casualty Company
Va. Ct. App. · 2011 · confidence medium
Co., 37 Va. App. 114, 117 , 554 S.E.2d 685, 686 (2001) (quoting Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31, 37 , 542 S.E.2d 785, 788 (2001)).
discussed Cited as authority (rule) Dominion Virginia Power and Dominion Resources, Inc. v. Betty J. Pulley
Va. Ct. App. · 2011 · confidence medium
Co. v. Hosey, 208 Va. 568 , 159 S.E.2d 633 (1968) (holding a higher-than-normal stair is an abnormal condition), Ferris, 49 Va. App. at 342-43 , 641 S.E.2d at 134 (finding a defect where the wheelchair ramp appeared to be level from the vantage point of claimant when she fell and injured herself), and Shepherd, 39 Va. App. at 293 , 572 S.E.2d at 512 (holding scaffolding is an abnormal condition because the height presented a greater risk than ordinary stairs), with Horton, 35 Va. App. at 30 , 542 S.E.2d at 785 (reversing an award of benefits because the claimant could not prove the set of step…
discussed Cited as authority (rule) Rochester Cable and Insurance Company of the State of Pennsylvania v. Melissa Ann Carpenter (2×)
Va. Ct. App. · 2010 · confidence medium
Refusal of Selective Employment “‘Code § 65.2-510 was enacted . . . to encourage employers to procure employment suitable to partially incapacitated employees.’” Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31, 37 , 542 S.E.2d 785, 788 (2001) (quoting Food Lion, Inc. v. Lee, 16 Va. App. 616, 619 , 431 S.E.2d 342, 344 (1993)) (alteration in original).
cited Cited as authority (rule) Chemed Corporation T/A Roto Rooter v. Lonnie Lynn Borrell
Va. Ct. App. · 2010 · confidence medium
Underwood, 35 Va. App. 31, 34 , 542 S.E.2d 785, 787 (2001).
examined Cited as authority (rule) Dowden v. Hercules, Inc. (8×) also: Cited "see", Cited "see, e.g."
Va. Ct. App. · 2008 · confidence medium
Hillcrest Manor Nursing Home, 35 Va.App. at 37, 39 , 542 S.E.2d at 788 , 789 (quoting and citing Code § 65.2-510(B)).
examined Cited as authority (rule) Downen v. Hercules, Inc. (8×) also: Cited "see", Cited "see, e.g."
Va. Ct. App. · 2007 · confidence medium
Hillcrest Manor Nursing Home, 35 Va. App. at 37, 39 , 542 S.E.2d at 788 , 789 (quoting and citing Code § 65.2-510(B)).
cited Cited as authority (rule) James Henry Mullins v. Big Laurel Mining and National Union Fire Insurance Company of Pittsburgh
Va. Ct. App. · 2007 · confidence medium
Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31, 37 , 542 S.E.2d 785, 788 (2001).
examined Cited as authority (rule) Dowden v. Hercules, Inc. (16×) also: Cited "see", Cited "see, e.g."
Va. Ct. App. · 2007 · confidence medium
Hillcrest Manor Nursing Home, 35 Va.App. at 37, 39 , 542 S.E.2d at 788 , 789 (quoting and citing Code § 65.2-510(B)).
discussed Cited as authority (rule) Minton & Roberson, Inc. v. Michael Anthony Wynter
Va. Ct. App. · 2006 · confidence medium
See Code § 65.2-510(B); Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31, 39 , 542 S.E.2d 785, 788 (2001) (holding that accepting a part-time position, at lower wages, after refusing an offer of full-time selective employment procured by the employer amounts to a partial cure).
discussed Cited as authority (rule) Consolidated Equipment v. Gary L. Cumbie
Va. Ct. App. · 2003 · confidence medium
Once an employer shows a “bona fide offer of selective employment, ‘the employee bears the burden of establishing justification for refusing such employment.’” Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31, 37 , 542 S.E.2d 785, 788 (2001) (quoting Food Lion, Inc. v. Lee, 16 Va. App. 616, 619 , 431 S.E.2d 342, 344 (1993)).
discussed Cited as authority (rule) Newport News Shipbuilding,et al v. William A. Winst
Va. Ct. App. · 2003 · confidence medium
"To constitute a bona fide offer, the selective employment contemplated by Code § 65.2-510 must be upon terms and conditions sufficiently specific to permit informed consideration by an employee, . . . and comprised of duties consistent with employee's remaining work capacity." Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31, 37 , 542 S.E.2d 785, 788 (2001) (citation omitted).
discussed Cited as authority (rule) Worksaver Material Handling v. Robert L. Epps (2×)
Va. Ct. App. · 2003 · confidence medium
Further, because this opinion has no precedential value, we recite only those facts essential to our holding. consider the evidence in the light most favorable to the prevailing party below." Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31, 34 , 542 S.E.2d 785, 787 (2001).
discussed Cited as authority (rule) Skip's Auto Parts v. Douglas Harrison Cline
Va. Ct. App. · 2002 · confidence medium
Further, because this opinion has no precedential value, we recite only those facts essential to our holding. below." Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31, 34 , 542 S.E.2d 785, 787 (2001).
cited Cited as authority (rule) Ace Carpentry, Inc v. Benjamin M Mullins
Va. Ct. App. · 2002 · confidence medium
Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31, 37 , 542 S.E.2d 785, 788 (2001).
discussed Cited as authority (rule) Newport News Shipbuilding & Dry Dock Co. v. Lawrence
Va. Ct. App. · 2002 · confidence medium
Co., 37 Va.App. 114, 117 , 554 S.E.2d 685, 686 (2001) (quoting Hillcrest Manor Nursing Home v. Underwood, 35 Va.App. 31, 37 , 542 S.E.2d 785, 788 (2001) (quoting Ellerson v. W.O.
cited Cited as authority (rule) Nurnie Reid v. City of Portsmouth Sheriff's Office
Va. Ct. App. · 2001 · confidence medium
Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31, 37 , 542 S.E.2d 785, 788 (2001) (citations omitted).
discussed Cited as authority (rule) Gallahan v. Free Lance Star Publishing Co.
Va. Ct. App. · 2001 · confidence medium
An employer seeking to terminate compensation benefits based on refusal of selective employment must establish “(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.” Hillcrest Manor Nursing Home v. Underwood, 35 Va.App. 31, 37 , 542 S.E.2d 785, 788 (2001) (quoting Ellerson v. W.O.
discussed Cited "see" Marc Louis v. Spotsylvania County Department of Social Services (2×)
Va. Ct. App. · 2017 · signal: see · confidence high
See Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31 , 39 n.4, 542 S.E.2d 785 , 789 n.4 (2001) (finding “an issue [was] not expressly stated among the [assignments of error] . . . we, therefore, decline to consider [it] on appeal”).
discussed Cited "see" Merley Jean Dorestal v. Spotsylvania County Department of Social Services (2×)
Va. Ct. App. · 2017 · signal: see · confidence high
See Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31 , 39 n.4, 542 S.E.2d 785 , 789 n.4 (2001) (finding “an issue [was] not expressly stated among the [assignments of error] . . . we, therefore, decline to consider [it] on appeal”). -6- and convincing evidence, that it is in the best interests of the child and that . . . the residual parental rights of the parent regarding a sibling of the child have previously been involuntarily terminated.” Mother does not contest that her parental rights to B.R. and D.L. were previously terminated.
discussed Cited "see" Al Chang Zhang v. Shiao Yu Tung (2×)
Va. Ct. App. · 2016 · signal: see · confidence high
See Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31 , 39 n.4, 542 S.E.2d 785 , 789 n.4 (2001) (finding “an issue [was] not expressly stated among the [assignments of error] . . . we, therefore, decline to consider [it] on appeal”).
discussed Cited "see" Cynthia Gayle Smith v. Michael Keith Smith, Sr. (2×)
Va. Ct. App. · 2014 · signal: see · confidence high
See Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31 , 39 n.4, 542 S.E.2d 785 , 789 n.4 (2001) (finding “an issue [was] not expressly stated among the [assignments of error] . . . we, therefore, decline to consider [it] on appeal”).
discussed Cited "see" David Alexander Pineda v. Commonwealth of Virginia (2×)
Va. Ct. App. · 2012 · signal: see · confidence high
See Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31 , 39 n.4, 542 S.E.2d 785 , 789 n.4 (2001) (declining to -2- consider an issue on appeal because it was not “expressly stated” in the questions presented (now assignments of error)). “[W]hen a party’s ‘failure to strictly adhere to the requirements of Rule 5A:20(e) is significant, ‘the Court of Appeals may . . . treat a[n] [assignment of error] as waived.’” Parks v. Parks, 52 Va. App. 663, 664 , 666 S.E.2d 547, 548 (2008) (quoting Jay v. Commonwealth, 275 Va. 510, 520 , 659 S.E.2d 311, 317 (2008)).
discussed Cited "see" Odessa W. Winfield v. Southside Virginia Training Center (2×)
Va. Ct. App. · 2008 · signal: see · confidence high
See Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31 , 39 n.4, 542 S.E.2d 785 , 789 n.4 (2001) (declined to consider “an issue not expressly stated among the ‘questions presented’”).
discussed Cited "see" Gahaad Jackson v. Commonwealth of Virginia (2×)
Va. Ct. App. · 2008 · signal: see · confidence high
See Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31 , 39 n.4, 542 S.E.2d 785 , 789 n.4 (2001); see also Lay v. Commonwealth, 50 Va. App. 330 , 336 n.3, 649 -5- S.E.2d 714, 716 n.3 (2007) (explaining that under Rule 5A:12(c) “[w]e . . . do not answer [an] unasked question”).
discussed Cited "see" McQuay, Inc. and Travelers Indemnity Company of America v. Scott M. Wood (2×)
Va. Ct. App. · 2008 · signal: see · confidence high
See Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31 , 39 n.4, 542 S.E.2d 785 , 789 n.4 (2001) (declined to consider “an issue not expressly stated among the ‘questions presented’”). adequately presented in the materials before the Court and argument would not aid the decisional process.
discussed Cited "see" Taunya Chappell v. Alexandria Department of Human Services (2×)
Va. Ct. App. · 2008 · signal: see · confidence high
See Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31 , 39 n.4, 542 S.E.2d 785 , 789 n.4 (2001) (declined to consider “an issue not expressly stated among the ‘questions presented’”). -2- Fairfax County Dep’t of Family Servs. v. D.N., 29 Va. App. 400, 406 , 512 S.E.2d 830, 832-33 (1999) (citations omitted).
discussed Cited "see" Ricky B's, Inc. and Northwestern National Casualty Company v. Lorrie Dianne Smith (2×)
Va. Ct. App. · 2008 · signal: see · confidence high
See Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31 , 39 n.4, 542 S.E.2d 785 , 789 n.4 (2001) (declined to consider “an issue not expressly stated among the ‘questions presented’”).
discussed Cited "see" Karl J. Ottosen v. Carla L. Saunders (2×)
Va. Ct. App. · 2005 · signal: see · confidence high
See Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31 , 39 n.4, 542 S.E.2d 785 , 789 n.4 (2001) (finding “an issue [was] not expressly stated among the ‘questions presented,’ . . . we, therefore, decline to consider [it] on appeal”); see also Rule 5A:20(c).
discussed Cited "see" Thomas Randolph Lewis v. Courtenay Munford Lewis (2×)
Va. Ct. App. · 2005 · signal: see · confidence high
See Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31 , 39 n.4, 542 S.E.2d 785 , 789 n.4 (2001) (finding “an issue [was] not expressly stated among the ‘questions presented’, . . . we, therefore, decline to consider [it] on appeal”); see also Rule 5A:20(c).
discussed Cited "see, e.g." Eman Mahamed v. Alexandria City Public Schools
Va. Ct. App. · 2023 · signal: see also · confidence low
See Fox v. Fox, 61 Va. App. 185, 202-03 (2012); Winston v. Commonwealth, 51 Va. App. 74 , 82 n.4 (2007) (holding that because an appellant did not include an argument in his questions presented (now assignments of error), the Court would not address it on appeal); see also Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31 , 39 n.4 (2001) (declining to consider an issue on appeal because it was not “expressly stated” in the questions presented (now assignments of error)).
discussed Cited "see, e.g." Joseph Maurice McFadden v. Commonwealth of Virginia (2×)
Va. Ct. App. · 2018 · signal: see also · confidence low
See Simmons v. Commonwealth, 63 Va. App. 69 , 75 n.4, 754 S.E.2d 545 , 548 n.4 (2014); Winston v. Commonwealth, 51 Va. App. 74, 82 , 654 S.E.2d 340, 345 (2007); see also Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31 , 39 n.4, 542 S.E.2d 785 , 789 n.4 (2001) (holding that issue was waived because it was not “expressly stated” in the questions presented (now assignments of error)).
discussed Cited "see, e.g." Torrey Lavell Washington v. Commonwealth of Virginia (2×)
Va. Ct. App. · 2015 · signal: see also · confidence low
Here, however, the issue is not whether appellant’s assignment of error “address[ed] the findings or rulings in the trial court,” Rule 5A:12(c)(1)(ii), but whether the assignment of error encompassed appellant’s argument on brief. -3- Rules 5A:12(c)(1) and 5A:20(c) require us to find that appellant’s argument regarding a reasonable hypothesis of innocence issue is waived, because it is not part of his assignment of error.1 See Winston v. Commonwealth, 51 Va. App. 74 , 82 n.4, 654 S.E.2d 340 , 345 n.4 (2007) (holding that because an appellant did not include an argument in his questio…
discussed Cited "see, e.g." Marcus Abrams v. Washington Metropolitan Area Transit Authority (2×)
Va. Ct. App. · 2014 · signal: see also · confidence low
Rule 5A:20; see also Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31 , 39 n.4, 542 S.E.2d 785 , 789 n.4 (2001) (stating that because “an issue [was] not expressly stated among the [assignments of error] . . . we, therefore, decline to consider [it] on appeal”). -6- In its role as fact finder, the commission weighed the medical evidence and articulated its reasoning for giving greater weight to the opinion of Dr. Eglevsky than to the opinions of claimant’s treating physicians.3 The commission explained in its opinion that “[v]irtually all of claimant’s diagnostic testing [ha…
discussed Cited "see, e.g." Ronald Ray Burgess v. Commonwealth of Virginia (2×)
Va. Ct. App. · 2014 · signal: see also · confidence low
See Fox v. Fox, 61 Va. App. 185, 202-03 , 734 S.E.2d 662, 670 (2012) (holding that because an appellant did not include an argument in his questions presented (now assignments of error), the Court would not address it on appeal); see also Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31 , 39 n.4, 542 S.E.2d 785 , 789 n.4 (2001) (declining to consider an issue on appeal because it was not “expressly stated” in the questions presented (now assignments of error)). 6 Appellant does not contest the first or third prongs of the plain view doctrine. -4- 560 (2009) (citing Horton v. Calif…
discussed Cited "see, e.g." Tyrone Jerrard Simmons v. Commonwealth of Virginia (2×)
Va. Ct. App. · 2014 · signal: see also · confidence low
See Winston v. Common *76 wealth, 51 Va.App. 74, 82 , 654 S.E.2d 340, 345 (2007) (holding that because an appellant did not include an argument in his questions presented (now assignments of error), the Court would not address it on appeal); see also Hillcrest Manor Nursing Home v. Underwood, 35 Va.App. 31 , 39 n. 4, 542 S.E.2d 785 , 789 n. 4 (2001) (declining to consider an issue on appeal because it was not "expressly stated” in the questions presented (now assignments of error)).
discussed Cited "see, e.g." Samir Allen Farhoumand v. Commonwealth of Virginia (2×)
Va. Ct. App. · 2013 · signal: see also · confidence low
See Winston v. Commonwealth, 51 Va. App. 74, 82 , 654 S.E.2d 340, 345 (2007) (holding that because an appellant did not include an argument in his questions presented (now assignments of error), the Court would not address it on appeal); see also Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31 , 39 n.4, 542 S.E.2d 785 , 789 n.4 7 Appellant argues that because of the victim’s age and intellect, he should not be considered a child witness.
discussed Cited "see, e.g." Dianne Metzler v. Commonwealth of Virginia (2×)
Va. Ct. App. · 2013 · signal: see also · confidence low
We note from the outset that appellant is not challenging the constitutionality of the peace bond statutes, but she simply contends the trial court erred in not granting her a jury trial. presented (now assignments of error), the Court would not address it on appeal); see also Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31 , 39 n.4, 542 S.E.2d 785 , 789 n.4 (2001) (declining to consider an issue on appeal because it was not “expressly stated” in the questions presented (now assignments of error)). 2 Appellant posted the security and was not placed in custody. -2- We begin our an…
discussed Cited "see, e.g." Shari Sims-Bernard v. Stephen P. Bernard (2×)
Va. Ct. App. · 2013 · signal: see also · confidence low
See Winston v. Commonwealth, 51 Va. App. 74, 82 , 654 S.E.2d 340, 345 (2007) (holding that because an appellant did not include an argument in his questions presented (now assignments of error), the Court would not address it on appeal); see also Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31 , 39 n.4, 542 S.E.2d 785 , 789 n.4 (2001) (declining to consider an issue on appeal because it was not “expressly stated” in the questions presented (now assignments of error)). - 10 - appeal.
discussed Cited "see, e.g." George William Ferguson, Jr. v. Commonwealth of Virginia (2×)
Va. Ct. App. · 2013 · signal: see also · confidence low
See also Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31 , 39 n.4, 542 S.E.2d 785 , 789 n.4 (2001) (declining to consider an issue on appeal because it was not “expressly stated” in the questions presented (now assignments of error)). 3 In his brief, appellant does not challenge whether an illegal pat down was conducted. -4- 193, 198, 487 S.E.2d 259, 261 (1997) (en banc), but we review de novo the trial court’s application of defined legal standards such as reasonable suspicion and probable cause to the particular facts of the case, see Ornelas v. United States, 517 U.S. 690, 6…
discussed Cited "see, e.g." Adam H. Fox v. Jessica C. Fox (2×)
Va. Ct. App. · 2012 · signal: see also · confidence low
See Winston v. Commonwealth, 51 Va.App. 74, 82 , 654 S.E.2d 340, 345 (2007) (holding that because an appellant did not include an argument in his questions presented (now assignments of *203 error), the Court would not address it on appeal); see also Hillcrest Manor Nursing Home v. Underwood, 35 Va.App. 31 , 39 n. 4, 542 S.E.2d 785 , 789 n. 4 (2001) (declining to consider an issue on appeal because it was not “expressly stated” in the questions presented (now assignments of error)).
discussed Cited "see, e.g." Kimberly R. Waters v. TGI Friday's and Indemnity Insurance Company of America (2×)
Va. Ct. App. · 2012 · signal: see also · confidence low
See Winston v. Commonwealth, 51 Va. App. 74, 82 , 654 S.E.2d 340, 345 (2007) (holding that because an appellant did not include an argument in his questions presented (now assignments of error), the Court would not address it on appeal); see also Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31 , 39 n.4, 542 S.E.2d 785 , 789 n.4 (2001) (declining to consider an issue on appeal because it was not “expressly stated” in the questions presented (now assignments of error)).
discussed Cited "see, e.g." Stanley Germiah Oliver v. Commonwealth of Virginia (2×)
Va. Ct. App. · 2012 · signal: see also · confidence low
See Winston v. Commonwealth, 51 Va. App. 74, 82 , 654 S.E.2d 340, 345 (2007) (holding that because an appellant did not include an argument in his questions presented (now assignments of error), the Court would not address it on appeal); see also Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31 , 39 n.4, 542 S.E.2d 785 , 789 n.4 (2001) (declining to consider an issue on appeal because it was not “expressly stated” in the questions presented (now assignments of error)). -5- at 439, 414 S.E.2d at 280 .
discussed Cited "see, e.g." Price v. Commonwealth (2×)
Va. Ct. App. · 2012 · signal: see also · confidence low
See Winston v. Commonwealth, 51 Va.App. 74, 82 , 654 S.E.2d 340, 345 (2007) (holding that because an appellant did not include an argument in his questions presented (now assignments of error), the Court would *767 not address it on appeal); see also Hillcrest Manor Nursing Home v. Underwood, 35 Va.App. 31 , 39 n. 4, 542 S.E.2d 785 , 789 n. 4 (2001) (declining to consider an issue on appeal because it was not "expressly stated” in the questions presented (now assignments of error)).
discussed Cited "see, e.g." John L. Harnois, Sr. v. Sara F. Riley-Harnois (2×)
Va. Ct. App. · 2011 · signal: see also · confidence low
See also Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31 , 39 n.4, 542 S.E.2d 785 , 789 n.4 (2001) (finding “an issue [was] not expressly stated among the [assignments of error] . . . we, therefore, decline to consider [it] on appeal”).
discussed Cited "see, e.g." Timothy M. Barrett v. Commonwealth of Virginia, Department of Social Services, etc. (2×)
Va. Ct. App. · 2011 · signal: see also · confidence low
See Winston, 51 Va. App. at 82 , 654 S.E.2d at 345 (holding that because appellant failed to include an argument in his question presented (now assignment of error), the Court would not address it on appeal; see also Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31 , 39 n.4, 542 S.E.2d 785 , 789 n.4 (2001) (declining to address an issue on appeal because it was not expressly stated in the questions presented (now assignments of error)). -9- “In a show cause hearing, the moving party need only prove that the offending party failed to comply with an order of the trial court.” Alexan…
discussed Cited "see, e.g." McDowell v. Commonwealth (2×)
Va. Ct. App. · 2010 · signal: see also · confidence low
See Winston v. Commonwealth, 51 Va.App. 74, 82 , 654 S.E.2d 340, 345 (2007) (holding that because an appellant did not include an argument in his questions presented (now assignments of error), the Court would not address it on appeal); see also Hillcrest Manor Nursing Home v. Underwood, 35 Va.App. 31 , 39 n. 4, 542 S.E.2d 785 , 789 n. 4 (2001) (declining to consider an issue on appeal because it was not "expressly stated” in the questions presented). 4 .
discussed Cited "see, e.g." Andrews v. Creacey (2×)
Va. Ct. App. · 2010 · signal: see also · confidence low
See Winston v. Commonwealth, 51 Va.App. 74, 82 , 654 S.E.2d 340, 345 (2007) (holding that because an appellant did not include an argument in his questions presented, the Court would not address it on ap *637 peal); see also Hillcrest Manor Nursing Home v. Underwood, 35 Va.App. 31 , 39 n. 4, 542 S.E.2d 785 , 789 n. 4 (2001) (declining to consider an issue on appeal because it was not “expressly stated” in the questions presented).
discussed Cited "see, e.g." Valerie A. Jones v. Donn David Ostroth (2×)
Va. Ct. App. · 2009 · signal: see also · confidence low
See Winston v. Commonwealth, 51 Va. App. 74, 82 , 654 S.E.2d 340, 345 (2007) (holding that because an appellant did not include an argument in his questions presented, the Court would not address it on appeal); see also Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31 , 39 n.4, 542 S.E.2d 785 , 789 n.4 (2001) (declining to consider an issue on appeal because it was not “expressly stated” in the questions presented).
Retrieving the full opinion text from the archive…
HILLCREST MANOR NURSING HOME and Zenith Insurance Company
v.
Rosa Marie UNDERWOOD
1027004.
Court of Appeals of Virginia.
Mar 6, 2001.
542 S.E.2d 785
Ralph L. Whitt Jr. (John R. Cornett, Jr., Richmond; Michael P. Del Bueno, Glen Allen; Williams, Lynch & Whitt, on briefs), for appellants., Nate L. Adams, III (Adams & Kellas, P.C., on brief), Winchester, for appellee.
Willis, Bray, Clements.
Cited by 83 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 80%
Citer courts: Court of Appeals of Virginia (1)
[*34] BRAY, Judge.

Hillcrest Manor Nursing Home (Hillcrest) and its insurer, Zenith Insurance Company (collectively employer), appeal an award of disability benefits by the Virginia Workers’ Compensation Commission (commission) to Rosa Marie Underwood (claimant). Employer complains the commission erroneously found claimant partially cured an unjustified refusal of selective employment. In a cross-appeal, claimant contends the commission incorrectly concluded employer made a valid offer of such employment, which she unreasonably refused and employer did not withdraw. Finding no error, we affirm the decision.

I.

In accordance with well established principles, we consider the evidence in the light most favorable to the prevailing party below. States Roofing Corp. v. Bush, 15 Va.App. 613, 616, 426 S.E.2d 124, 126 (1993).

“Factual findings of the commission that are supported by credible evidence are conclusive and binding upon this Court on appeal.” Southern Iron Works, Inc. v. Wallace, 16 Va.App. 131, 134, 428 S.E.2d 32, 34 (1993). “If there is evidence, or reasonable inferences can be drawn from the evidence, to support the Commission’s findings, they will not be disturbed on review, even though there is evidence in the record to support a contrary finding.” Morris v. Badger Powhatan/Figgie Int’l, Inc., 3 Va.App. 276, 279, 348 S.E.2d 876, 877 (1986).

Hoy Construction, Inc. v. Flenner, 32 Va.App. 357, 361, 528 S.E.2d 148, 150 (2000).

While employed by Hillcrest as a “certified nursing assistant,” claimant suffered a compensable injury on August 30, 1997. At the time of the incident, claimant was working for employer “about thirty-two hours” weekly, lifting, dressing, bathing, feeding and otherwise caring for patients at Hillcrest, while similarly employed, “full-time,” elsewhere. Dr. William J. Bender treated claimant the day of the injury and then[*35] released her for return to work, subject to restrictions on “Lifting” and “Bending, Squatting/Twisting.” During the ensuing months, claimant was treated by several physicians in practice with Dr. Bender and each prescribed limitations upon her employment and other activities. As a result of such restrictions, claimant’s full-time employment was “no longer available” and Hillcrest offered, and she accepted, part-time, light duty work at substantially reduced hours.

On November 21, 1997, Doris M. Traylor, administrator of Hillcrest, offered claimant a “full-time” light duty position at Hillcrest, “meaning [a return to] thirty-two hours per week” at Hillcrest, performing “the exact same job description [claimant] was [then] working under” part-time. However, citing “personal reasons,” claimant declined, [1] explaining at the hearing that the expanded employment would have required her to “be out after dark” and interfered with medical care [2] and the transport of her “boyfriend back and forth to work.” Claimant further testified that full-time employment exceeded her limitations, [3] a circumstance admittedly unsupported by “healthcare professionals]” and not a consideration in her decision. Thereafter, claimant continued to regularly work part-time, light duty at Hillcrest from 11:00 a.m.-7:00 p.m. two days each week, despite her stated preference for the 7:00 a.m.-3:00 p.m. shift.

By letter dated December 20, 1997, claimant again protested any attempt by Hillcrest to assign a “full schedule ... without [her] permission.” She acknowledged “thoughts] about working more time” but had “reasons why” deciding against it. Nevertheless, claimant volunteered to “work some Monday [sic]” and promised to “let [Traylor] know if [she][*36] ever want[ed] to do extra time.” Claimant concluded the note declaring, “I want my schedule back,” apparently referencing the preferred shift. Claimant confirmed the contents of the letter during a meeting with Ms. Traylor on December 26, 1997, and Hillcrest restored the part-time schedule pursuant to her request, without further mention of the full-time, light duty employment offer.

Claimant filed for benefits with the commission on May 14, 1998, and Deputy Commissioner Culbreth conducted a hearing on October 20, 1998. In an amended opinion, dated June 4, 1999, the deputy awarded claimant temporary partial disability benefits for the period September 1, 1997 through November 21, 1997. However, the deputy suspended benefits beginning November 21, 1997, ruling claimant “cannot be awarded benefits based on her choice, for non-medical reasons, to reject hours which would be within her restrictions, and would put her at or above her pre-injury average weekly wage.”

On appeal by claimant, the full commission affirmed the deputy’s finding of unjustified refusal of selective employment on November 21, 1997. However, the commission reversed the suspension of benefits, reasoning that claimant, by accepting light duty, part-time employment with Hillcrest, partially cured such refusal, entitling her to “temporary partial disability benefits” based on the difference between her pre-injury average weekly wage and the wage she would have earned had she accepted the full-time hours. Both employer and claimant appeal.

II.

“If an injured employee unjustifiably refuses selective employment offered by the employer, he or she is ‘no longer entitled to receive disability compensation during the continuance of the refusal.’ ” ARA Services v. Swift, 22 Va.App. 202, 206, 468 S.E.2d 682, 684 (1996) (citing Virginia Wayside Furn., Inc. v. Burnette, 17 Va.App. 74, 78, 435 S.E.2d 156, 159 (1993); Code § 65.2-510(A)). However, “once an employee has cured an unjustified refusal of selective employment, he or[*37] she is entitled to reinstatement of benefits.” Food Lion, Inc. v. Newsome, 30 Va.App. 21, 25, 515 S.E.2d 317, 319 (1999); see Code § 65.2-510(B). If the injured employee cures “by accepting employment ... at a wage less than that originally offered, the employer shall pay or cause to be paid” weekly compensation to the partially incapacitated employee “equal to 66 % percent of the difference between his average weekly wages before ... injury and the average weekly wage the employee would have earned by accepting the original proffered light duty employment.” Code § 65.2-510(B).

“Code § 65.2-510 was enacted ... to encourage employers to procure employment suitable to partially incapacitated employees.” Food Lion, Inc. v. Lee, 16 Va.App. 616, 619, 431 S.E.2d 342, 344 (1993). An employer seeking to terminate compensation benefits pursuant to the statute must establish “(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.” Ellerson v. W.O. Grubb Steel Erection Co., 1 Va.App. 97, 98, 335 S.E.2d 379, 380 (1985). To constitute a bona fide offer, the selective employment contemplated by Code § 65.2-510 must be upon terms and conditions sufficiently specific to permit informed consideration by an employee, id. at 101-02, 335 S.E.2d at 382, and comprised of duties consistent with employee’s remaining work capacity. American Furniture Co. v. Doane, 230 Va. 39, 42, 334 S.E.2d 548, 550 (1985).

Upon a showing by employer of a bona fide offer of selective employment, “the employee bears the burden of establishing justification for refusing such employment.” Food Lion, Inc., 16 Va.App. at 619, 431 S.E.2d at 344. “To support a finding of justification to refuse suitable selective employment, ‘the reasons advanced must be such that a reasonable person desirous of employment would have refused the offered work.’ ” Id. (citation omitted).

Here, claimant first complains that employer’s evidence did not prove a bona fide offer. Her argument, however, is belied by the record. At the time the offer was tendered[*38] by employer, claimant was performing part-time duties identical to those attendant to the proposed full-time employment. She acknowledged an understanding that the offer involved only an increase in hours worked weekly, not a change in tasks, and her “personal” objections to the terms related solely to such distinction. Claimant, therefore, was sufficiently aware of the job description to properly consider the Hillcrest offer.

Similarly, with respect to claimant’s capacity to perform the related duties, the record does not support her contention that the offer violated restrictions imposed either by physicians or any functional limitations evinced during her part-time employment. To the contrary, claimant satisfactorily performed the tasks of part-time employment and, in response to employer’s offer, volunteered for more frequent work shifts, albeit on a schedule acceptable to her. Under such circumstances, “where the attending physician has specified the limitations ... and it is obvious that the proffered job fits these limitations,” submission of the “job description to the physician for what would be merely ‘rubber stamp action’ ” is unnecessary. Talley v. Goodwin Bros. Lumber Co., 224 Va. 48, 52, 294 S.E.2d 818, 820-21 (1982) (citation omitted). Accordingly, the record provides ample support for the commission’s finding that employer made a bona fide offer of selective employment to claimant.

Claimant next maintains she “never absolutely rejected an offer of selective employment where she failed to work at all” because she willingly worked part-time. Clearly, however, unjustified refusal by claimant of the “employment procured for [her] suitable to [her] capacity,” the full-time employment in issue, triggered the loss of benefits contemplated by Code § 65.2-510. Code § 65.2-510(A). Claimant’s continued part-time employment cannot be deemed acceptance of the full-time offer. The commission, therefore, correctly concluded she “unjustifiably refused light duty employment on November 21,1997.”

[*39] Lastly, assuming an unjustified refusal of employer’s bona fide offer, claimant, nevertheless, insists upon entitlement to full temporary benefits, commencing December 20, 1997, contending employer subsequently withdrew the offer of full-time employment by “scheduling] her the way [she] wanted to work.” However, employer’s accession to claimant’s request for a return to shifts preferable to her clearly does not suggest a withdrawal of the offer. [4]

Employer complains on appeal that the commission erroneously determined claimant partially cured her initial refusal of full-time selective employment by simply continuing the part-time, light duty work that predated the offer, without further “action, affirmative or otherwise.” In resolving this issue and awarding claimant benefits pursuant to Code § 65.2-510(B), the commission reasoned that, “[a]lthough it was the claimant’s decision to work the reduced hours, the effect was the same as if she, in an attempt to cure, had obtained alternate employment at a reduced wage.” We agree with the commission.

If claimant had refused the offer of full-time employment, resigned and thereafter immediately accepted part-time, light duty work with employer or elsewhere, at reduced wages, she would have partially cured such refusal. Likewise, continued part-time, selective employment, with Hillcrest, following the full-time offer, constituted a partial cure of her prior unjustified refusal of such employment within the intendment of Code § 65.2-510(B). A contrary result would deny benefits under circumstances evincing little substantive difference in conduct, thereby thwarting the purposes of the Workers’ Compensation Act, “highly remedial” legislation, “designed to protect employees,” which “ ‘should be liberally construed in favor of the [employee].”’ Brown v. United Airlines, 34 Va.App. 273, 276, 540 S.E.2d 521, 522 (2001) (citations omitted). Accordingly, the commission correctly determined that[*40] “claimant would still be entitled to temporary benefits based on the difference between her preinjury average weekly wage and the wage she would have earned had she accepted full-time hours.”

We, therefore, affirm the decision of the commission.

Affirmed.'

1

. In a subsequent note to employer, claimant offered to accept such employment on a schedule compatible with her “personal” life.

2

. Certain therapy cited by claimant had ended at the time of the offer, and no effort was made to reschedule other care.

3

. Claimant acknowledged an "aware[ness]” of the attendant duties, and the job description was later approved by her treating physician.

4

. Claimant also contends the commission incorrectly calculated benefits, an issue not expressly stated among the "question[s] presented,” which we, therefore, decline to consider on appeal. See Rule 5A:21.