Roger Franklin Forrest v. Ball Metal Container, etc ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
ROGER FRANKLIN FORREST
v. Record No. 1091-95-1 MEMORANDUM OPINION *
PER CURIAM
BALL METAL CONTAINER GROUP OCTOBER 24, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Richard B. Donaldson, Jr.; Kevin W. Grierson; Jones,
Blechman, Woltz & Kelly, on brief), for appellant.
(John M. Oakey, Jr.; Jill M. Misage; McGuire, Woods,
Battle & Boothe, on brief), for appellee.
Roger Franklin Forrest contends that the Workers'
Compensation Commission erred in finding that Ball Container
Group ("employer") offered suitable selective employment to him,
which he unjustifiably refused. Upon reviewing the record and
the briefs of the parties, 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). "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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
employee to accept the job.'" James v. Capitol Steel Constr.
Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 489 (1989)(quoting
Ellerson v. W.O. Grubb Steel Erection Co., 1 Va. App. 97, 98, 335
S.E.2d 379, 380 (1985)). The commission's factual findings will
be upheld on appeal if supported by credible evidence. James, 8
Va. App. at 515, 382 S.E.2d at 488.
In granting employer's application, the commission found
that Joint Exhibit 1, the videotape, accurately depicted the
claimant's pre-injury palletizer operator job as it existed when
offered to claimant by employer. As fact finder, the commission
was entitled to reject claimant's testimony disputing the
accuracy of the videotape and his assertion that the requirements
of the job fell outside of the lifting, bending, and twisting
restrictions placed upon him by Dr. Mark A. Rubenstein. The
commission was also entitled to accept the testimony of
employer's witnesses who stated that claimant did not voice any
complaints concerning his physical condition while performing the
job.
Dr. Rubenstein released claimant to return to work on the
basis of the videotape. In addition, Dr. Rubenstein reviewed
claimant's notes reflecting his actual experience upon returning
to the job in late March 1994 for a four-day period. Dr.
Rubenstein did not find any objective evidence from which to
conclude that claimant's return to the job adversely affected his
physical condition in any manner.
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The videotape and Dr. Rubenstein's opinions constitute
credible evidence to support the commission's holding that, by
leaving his position with employer, claimant unjustifiably
refused selective employment. "The fact that there is contrary
evidence in the record is of no consequence if there is credible
evidence to support the commission's finding." Wagner Enters.,
Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
Accordingly, we affirm the commission's decision.
Affirmed.
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