Dickenson Co. Sch. Bd v. Eula Charlene Witt ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
DICKENSON COUNTY SCHOOL BOARD AND
LEGION INSURANCE COMPANY
MEMORANDUM OPINION*
v. Record No. 2904-01-3 PER CURIAM
MARCH 5, 2002
EULA CHARLENE WITT
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Richard D. Lucas; Lucas & Associates, on
brief), for appellants.
(Paul L. Phipps; Lee & Phipps, P.C., on
brief), for appellee.
Dickenson County School Board and its insurer (hereinafter
referred to as "employer") contend the Workers' Compensation
Commission erred in finding that Eula Charlene Witt (claimant)
proved she was justified in refusing selective employment
offered to her by employer. Upon reviewing the record and the
parties' briefs, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision.
Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
"To support a finding of refusal of selective employment
'the record must disclose (1) a bona fide job offer suitable to
the employee's capacity; (2) [a job offer that was] procured for
the employee by the employer; and (3) an unjustified refusal by
the employee to accept the job.'" Id. at 515, 382 S.E.2d at 489
(quoting Ellerson v. W.O. Grubb Steel Erection Co., 1 Va. App.
97, 98, 335 S.E.2d 379, 380 (1985)).
"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).
"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).
The commission found that the claimant made a bona fide
attempt to return to light-duty work, but due to her back pain
she was unable to continue working. Although Dr. Richard S.
Duncan opined that claimant could return to work with
restrictions, "the fact that contrary evidence may be found in
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the record is of no consequence if credible evidence supports
the commission's finding." Manassas Ice & Fuel Co. v. Farrar,
13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991). The
claimant's testimony regarding her multiple attempts to perform
the light-duty work offered by employer and her inability to do
so, emergency room reports reflecting claimant's reports of back
pain after several attempts to return to light-duty work, and
Drs. Duncan and O'Connell's opinions that claimant's pain
complaints are real constitute credible evidence sufficient to
support the commission's findings that claimant made a bona fide
attempt to perform light-duty work offered to her by employer,
but was unable to do so because of her back pain. Those
findings are binding and conclusive upon us on appeal, and were
sufficient to support the commission's decision that claimant
was justified in refusing selective employment.
For these reasons, we affirm the commission's decision.
Affirmed.
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