Tultex Corporation v Kimberly S. Brown

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judges Coleman and Fitzpatrick
Argued at Salem, Virginia
TULTEX CORPORATION
v. 	Record No. 0382-95-3 	MEMORANDUM OPINION* BY
CHIEF JUDGE NORMAN K. MOON
KIMBERLY S. BROWN 	JANUARY 30, 1996
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Gregory T. Casker (Martha White Medley;
Daniel, Vaughan, Medley & Smitherman, P.C.,
on brief), for appellant.
Rhonda L. Overstreet (Law Offices of Gary L.
Lumsden, on brief), for appellee.
Tultex Corporation appeals the Workers' Compensation
Commission's decision awarding the claimant temporary total
disability benefits following her refusal to report to a light
duty assignment. 	We affirm the commission's decision.
Kimberly S. Brown was a knitter at Tultex Corporation. 	She
sustained a compensable injury to her knee on January 26, 1994.
On February 1, 1994, her treating physician approved her for work
in a "primary sitting job." 	For much of the next several months,
Ms. Brown performed light duty work as a freight elevator
operator at Tultex. 	Ms. Brown testified that the job involved
both sitting and standing.
As of April 21, 1994, the treating physician held Ms. Brown
out of work for further testing. 	The test results were normal.
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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On April 29, 1994, the physician examined Ms. Brown again and
approved her for work effective May 2, 1994.
On May 2, Ms. Brown did not come in to perform the freight
elevator job. 	She claimed that she was unable to work because
her knee was swollen. 	Brown testified that the treating
physician had told her she should not work if her knee was
swollen to the point that she could not put weight on it. 	The
claimant's attorney stipulated that the job was medically
approved, and stated that the only question was whether Ms.
Brown's refusal to work was justified. 	Ms. Brown was terminated
from Tultex due to her failure to return to work, and began work
with another employer on June 15, 1994.
The Court must construe the evidence in the light most
favorable to the party prevailing below. 	R.G. Moore Building
Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
(1990). 	Factual findings of the commission will not be disturbed
on appeal, if based on credible evidence. 	Hercules, Inc. v.
Gunther, 13 Va. App. 357, 361, 412 S.E.2d 185, 187 (1991).
Where selective employment is refused, the employer has the
burden to show that the position offered was within the
employee's residual capacity. 	If the employer sustains this
burden, the burden shifts to the employee to show that refusal of
the employment was justified. 	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).
The commission ruled that the employer failed to sustain its

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burden of showing that the position offered was within the
claimant's residual capacity. 	We disagree. 	The claimant
stipulated that a medically approved job was offered as of April
29, a Friday. 	The physician approved the claimant to begin work
on May 2nd, the following Monday. 	This evidence, undisputed by
the claimant, is sufficient to meet the employer's burden.
The burden then shifted to the claimant to show that she was
unable to perform the light duty job on May 2nd. 	Ms. Brown
testified that she was following her doctor's instructions by
refusing to work because her knee was swollen. 	Although this
testimony would appear at odds with the doctor's filed reports,
we cannot say as a matter of law that her testimony was
incredible and that the commission could not have believed her
explanation. 	Viewing the evidence in the light most favorable to
the claimant, the commission's decision that Ms. Brown was
justified in refusing to work on May 2nd is supported by credible
evidence. 	Accordingly, we affirm the commission's award.
Affirmed.