Food Lion, Inc. v. Lee, 431 S.E.2d 342 (Va. Ct. App. 1993). · Go Syfert
Food Lion, Inc. v. Lee, 431 S.E.2d 342 (Va. Ct. App. 1993). Cases Citing This Book View Copy Cite
75 citation events (41 in the last 25 years) across 2 distinct courts.
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Top citers, strongest first. 26 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Dowden v. Hercules, Inc. (2×) also: Cited as authority (quoted)
Va. Ct. App. · 2008 · quote attribution · 2 verbatim quotes · confidence high
code 65.2-510 was enacted ... to encourage employers to procure employment suitable to partially incapacitated employees.
examined Cited as authority (verbatim quote) Downen v. Hercules, Inc. (2×) also: Cited as authority (quoted)
Va. Ct. App. · 2007 · quote attribution · 2 verbatim quotes · confidence high
code 65.2-510 was enacted . . . to encourage employers to procure employment suitable to partially incapacitated employees.
examined Cited as authority (verbatim quote) Dowden v. Hercules, Inc. (4×) also: Cited as authority (quoted)
Va. Ct. App. · 2007 · quote attribution · 4 verbatim quotes · confidence high
code 65.2-510 was enacted . . . to encourage employers to procure employment suitable to partially incapacitated employees.
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).
discussed 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
As this Court explained in Food Lion v. Lee, 16 Va. App. 616, 619 , 431 S.E.2d 342, 344 (1993) (quoting Johnson v. Virginia Employment Comm’n, 8 Va. App. 441, 452 , 382 S.E.2d 476, 481 (1989)), “[t]o 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.’” Because “it is impossible to anticipate and legislate every potential event” justifying a refusal, DePaul Med.
discussed Cited as authority (rule) Minton & Roberson, Inc. v. Michael Anthony Wynter
Va. Ct. App. · 2006 · confidence medium
“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).
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) Carole E Vance v. Lowes of Staunton
Va. Ct. App. · 2003 · confidence medium
Unjustified Refusal of Selective Employment "When the employer establishes that selective employment was offered to an employee that was within the employee's capacity to work, the employee bears the burden of establishing justification for refusing the offered employment." Food Lion, Inc. v. Lee, 16 Va. App. 616, 619 , 431 S.E.2d 342, 344 (1993).
cited Cited as authority (rule) Clements v. Riverside Walter Reed Hospital
Va. Ct. App. · 2003 · confidence medium
Hillcrest Manor Nursing Home, 35 Va.App. at 34 , 542 S.E.2d at 787 ; Food Lion, Inc. v. Lee, 16 Va.App. 616, 619 , 431 S.E.2d 342, 344 (1993).
discussed Cited as authority (rule) Atlas Plumbing & Mechanical, Inc. v. Lang
Va. Ct. App. · 2002 · confidence medium
“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.’ ” Food Lion v. Lee, 16 Va.App. 616, 619 , 431 S.E.2d 342, 344 (1993) (quoting Johnson v. Virginia Employment Comm’n, 8 Va.App. 441, 452 , 382 S.E.2d 476, 481 (1989)).
discussed Cited as authority (rule) Dickenson Co. Sch. Bd v. Eula Charlene Witt
Va. Ct. App. · 2002 · confidence medium
"When the employer establishes that selective employment was offered to an employee that was within the employee's capacity to work, the employee bears the burden of establishing justification for refusing the offered employment." Food Lion, Inc. v. Lee, 16 Va. App. 616, 619 , 431 S.E.2d 342, 344 (1993).
discussed Cited as authority (rule) Lonnie James Breeding v. Clinchfield Coal
Va. Ct. App. · 2001 · confidence medium
"When the employer establishes that selective employment was offered to an employee that was within the employee's capacity to work, the employee bears the burden of establishing justification for refusing the offered employment." Food Lion, Inc. v. Lee, 16 Va. App. 616, 619 , 431 S.E.2d 342, 344 (1993).
cited Cited as authority (rule) Hillcrest Manor Nursing Home v. Underwood
Va. Ct. App. · 2001 · confidence medium
“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).
discussed Cited as authority (rule) Rock City Mechanical, Inc v. Thomas Lee Barry
Va. Ct. App. · 2000 · confidence medium
"When the employer establishes that selective employment was offered to an employee that was within the employee's capacity to work, the employee bears the burden of establishing justification for refusing the offered employment." Food Lion, Inc. v. Lee, 16 Va. App. 616, 619 , 431 S.E.2d 342, 344 (1993).
discussed Cited as authority (rule) Clarence W. Truax,Jr. v. William A. Hazel, Inc.,etc
Va. Ct. App. · 2000 · confidence medium
"When the employer establishes that selective employment was offered to an employee that was within the employee's capacity to work, the employee bears the burden of establishing justification for refusing the offered employment." Food Lion, Inc. v. Lee, 16 Va. App. 616, 619 , 431 S.E.2d 342, 344 (1993).
cited Cited as authority (rule) Cynthia Krohn v. Mary Immaculate Hospital
Va. Ct. App. · 2000 · confidence medium
See American Furniture Co. v. Doane, 230 Va. 39, 42 , 334 S.E.2d 548, 550 (1985); Food Lion, Inc. v. Lee, 16 Va. App. 616, 619 , 431 S.E.2d 342, 344 (1993).
discussed Cited as authority (rule) Herbert C. King, Jr. v. Pepsi Cola Company
Va. Ct. App. · 1999 · confidence medium
Corp. v. Mullins, 10 Va. App. 211, 212 , 390 S.E.2d 788, 788 (1990). "'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, * Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. even though there is evidence in the record to support a contrary finding.'" Food Lion, Inc. v. Lee, 16 Va. App. 616, 619 , 431 S.E.2d 342, 344 (1993) (citation omitted).
cited Cited as authority (rule) Sandra C. Graham v. Consolidated Stores
Va. Ct. App. · 1998 · confidence medium
See American Furniture Co. v. Doane, 230 Va. 39, 42 , 334 S.E.2d 548, 550 (1985); Food Lion, Inc. v. Lee, 16 Va. App. 616, 619 , 431 S.E.2d 342, 344 (1993).
discussed Cited as authority (rule) Houlihan's t/a Darryl's Rest. v. Slater
Va. Ct. App. · 1998 · confidence medium
Selective Employment "When the employer establishes that selective employment was offered to an employee that was within the employee's capacity to work, the employee bears the burden of establishing justification for refusing the offered employment." Food Lion, Inc. v. Lee, 16 Va. App. 616, 619 , 431 S.E.2d 342, 344 (1993).
cited Cited as authority (rule) Retreat Hospital and Continental Ins. v. Hammersley
Va. Ct. App. · 1998 · confidence medium
See id.; Food Lion, Inc. v. Lee, 16 Va. App. 616, 619-20 , 431 S.E.2d 342, 344-45 (1993).
discussed Cited as authority (rule) William R. Perrigan v. Clinchfield Coal Company
Va. Ct. App. · 1997 · confidence medium
"When the employer establishes that selective employment was offered to an employee that was within the employee's capacity to work, the employee bears the burden of establishing justification for refusing the offered employment." Food Lion, Inc. v. Lee, 16 Va. App. 616, 619 , 431 S.E.2d 342, 344 (1993).
discussed Cited as authority (rule) Skyline Excavating Co. v. John K. Abshire
Va. Ct. App. · 1997 · confidence medium
As fact finder, the commission concluded, as it was entitled to do, based upon claimant's co-workers' testimony, that the accident occurred when claimant was holding the digging bar against his left leg and the backhoe bucket struck the digging bar. "'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 5 though there is evidence in the record to support a contrary finding.'" Food Lion, Inc. v. Lee, 16 Va. App. 616, 619 , 431 S.E.2d 342, 344 (1993) (quoting Morris v. Badger Powhatan/Figgi…
discussed Cited as authority (rule) Tidewater Construction v. William H. Pretlow
Va. Ct. App. · 1996 · confidence medium
"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." Food Lion, Inc. v. Lee, 16 Va. App. 616, 619 , 431 S.E.2d 342, 344 (1993) (quoting Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279 , 348 S.E.2d 876, 877 (1986).
cited Cited as authority (rule) Tultex Corporation v. Kimberly S. Brown
Va. Ct. App. · 1996 · confidence medium
American Furniture Co. v. Doane, 230 Va. 39, 42 , 334 S.E.2d 548, 550 (1985); Food Lion, Inc. v. Lee, 16 Va. App. 616, 619 , 431 S.E.2d 342, 344 (1993).
discussed Cited "see" Shah v. Howard Johnson
N.C. Ct. App. · 2000 · signal: see · confidence high
See, for example, Food Lion, Inc. v. Lee, 431 S.E.2d 342 (Va. App. 1993) (justification is a much broader inquiry than just the “ ‘intrinsic aspects of the job[]’ ”) (quoting Johnson v. Virginia Employment Comm’n, 382 S.E.2d 476, 478 (Va. App. 1989)); Jones-Jennings v. Hutzel Hospital, 565 N.W.2d 680 (Mich. App. 1997), appeal denied, 586 N.W.2d 233 (Mich. 1998) (holding where distance is a factor in determining the reasonableness of an employee’s refusal of a bona fide offer of employment the court looks at the employee’s place of residence at the time the offer is made); Roadway…
discussed Cited "see" Maria Emigdia Turpin v. Fairfax County School Bd. (2×)
Va. Ct. App. · 1999 · signal: see · confidence high
See Food Lion, Inc. v. Lee, 16 Va. App. 616, 619 , 431 S.E.2d 342, 344 (1993). - 4 - We review the evidence in the light most favorable to the appellee.
Retrieving the full opinion text from the archive…
Food Lion, Inc., and Alexsis Risk Management Services, Inc.
v.
Robert J. Lee
Record No. 1301-92-1.
Court of Appeals of Virginia.
Jun 22, 1993.
431 S.E.2d 342
Counsel, Daniel E. Lynch (Williams, Butler & Pierce, on brief), for appellant., George T. Albiston (Breit Drescher & Breit, on brief), for appellee.
Benton.
Cited by 27 opinions  |  Published
2 passages pin-cited by 3 cases
Pinpoint authority: bottom 74%
Citer courts: Court of Appeals of Virginia (4)

Opinion

BENTON, J.

Food Lion, Inc., appeals from a decision reinstating compensation benefits to Robert J. Lee. Food Lion contends that the commission erred (1) in implicitly affirming the deputy commissioner’s finding that Food Lion’s offer of light duty employment to Lee was not bona fide and was not made in good faith, and (2) in finding that Lee’s refusal of light duty employment was justified. We affirm the commission’s award.

I.

The evidence proved that Lee was injured in a work-related injury in 1988 while employed with Food Lion. Upon the advice of his physicians, Lee moved to Florida for health reasons in June, 1990. Food Lion provided rehabilitation counseling services to Lee in Florida. Lee, however, was unable to find employment. Lee was forced to return to Chesapeake, Virginia in December, 1990, when the tenants who leased his home defaulted on their payments. When Lee returned to Virginia, his mortgage payments were delinquent and he sought to[*618] forestall foreclosure. However, Lee received a foreclosure notice in April, 1991, requiring him to vacate the house by June, 1991.

In April, 1991, Lee began discussing his financial problems and the foreclosure of his home with Ramanee Miller, the rehabilitation counselor employed by Food Lion’s insurer to assist Lee. Lee informed Miller that because of his financial distress he needed to move either to Pennsylvania or North Carolina, places where he had family. Miller told Lee that he should select an area where Food Lion stores were located. Miller also advised Lee to discuss his move with Food Lion. Lee testified that Miller told him that she would relay to the insurance company the information concerning Lee’s plans to move. Miller testified, however, that she informed Lee that he would need to contact the insurance company directly and inform them that he wanted to transfer.

In June, 1991, Lee decided to move to Holden Beach, North Carolina, where there were fourteen Food Lion stores within a thirty mile radius. Lee went to one of the Food Lion stores in Holden Beach and'discussed with the store manager the possibility of performing the light duty employment that Food Lion was designing for him. Lee testified that the store in Holden Beach was similar to the store in Chesapeake and that the store manager expressed no objection to providing Lee selective employment in that store.

On July 27, 1991, Lee was offered light duty employment at a Food Lion store in Chesapeake, Virginia, to begin on August 5, 1991. Four days after he received the offer, Lee informed Food Lion’s insurer of his impending move to Holden Beach, North Carolina and that he would not be able to accept their offer of employment in Chesapeake, Virginia. Lee indicated that he would be willing to perform the same position at a store in Holden Beach, North Carolina. Miller testified that the job offered to Lee could be performed in any Food Lion store, provided the job was offered to him. Food Lion paid Lee compensation through August 5, 1991, and filed an application for a hearing in which it alleged that Lee refused light duty work.

On this evidence, the deputy commissioner held that Food Lion’s offer of employment was not bona fide and was not made in good faith and, further, that Lee had not unjustifiably refused the offer. On appeal, the commission did not address whether Food Lion acted in good faith or made a bona fide offer but, instead, held that Lee was justified in refusing the offer of selective employment.

[*619] II.

Code § 65.2-510 was enacted by the legislature to encourage employers to procure employment suitable to partially incapacitated employees. Big D Quality Homebuilders v. Hamilton, 228 Va. 378, 381, 322 S.E.2d 839, 841 (1984). When the employer establishes that selective employment was offered to an employee that was within the employee’s capacity to work, the employee bears the burden of establishing justification for refusing the offered employment. American Furniture Co. v. Doane, 230 Va. 39, 42, 334 S.E.2d 548, 550 (1985). Justification is not limited to a consideration of whether the employer offered the job in good faith. Johnson v. Virginia Employment Comm’n, 8 Va. App. 441, 452, 382 S.E.2d 476, 481 (1989).

(2) 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. Furthermore, the determination of justification to refuse employment involves “a much broader inquiry than merely considering whether the intrinsic aspects of the job are acceptable to the prospective employee.” Id. at 447, 382 S.E.2d at 478. Justification to refuse an offer of selective employment ‘ ‘may arise from factors totally independent of those criteria used to determine whether a job is suitable to a particular employee.” Id.

Applying the accepted rules of appellate review, we construe 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 916, 916 (1986). “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). The commission made the following finding:

While the job offer, itself, was clearly one within the physical capacity of the employee, the employer, through its representative, had been appropriately advised of Lee’s plight and had actually advised him and recommended North Carolina as a prospective area for future employment opportunity with Food Lion.

The record contains credible evidence to support that finding. Lee’s testimony states that he moved to North Carolina on the advice of the[*620] rehabilitation counselor. She told him to move to an area where Food Lion operated stores. Lee also testified that the counselor informed him that she would notify Food Lion of his circumstances and need to move. Although the rehabilitation counselor confirmed that she discussed with Lee his finances and need to move, she denied that she said she would convey that information to Food Lion. The rehabilitation counselor testified, however, that she assisted Food Lion in creating a position for Lee in the Chesapeake store. She did this at a time when she knew Lee was moving to North Carolina.

In finding that Lee did not unjustifiably refuse the offer, the commission appropriately considered Lee’s need to move and the advice conveyed by the rehabilitation counselor. Significantly, the rehabilitation counselor also testified that the selective employment could be available at any Food Lion store. The job was “customized for . . . Lee” and could have been created at any of the stores “[a]s long as they offered him the job.”

Upon this record, we conclude that Lee put forward “real and substantial reasons for [his] refusal’ ’ to accept the suitable employment. Johnson, 8 Va. App. at 452, 382 S.E.2d at 481. Accordingly, credible evidence supports the commission’s determination that Lee did not unjustifiably refuse the offer of selective employment.

Affirmed.

Baker, L, and Barrow, L, concurred.