C&C Plumbing, Inc., et al v William Vaughn

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Fitzpatrick
Argued at Alexandria, Virginia
C & C PLUMBING, INC. AND
COLONIAL AMERICAN CASUALTY
& SURETY CO.
v. 	Record No. 2390-94-4 	MEMORANDUM OPINION* BY
JUDGE JOHANNA L. FITZPATRICK
WILLIAM VAUGHN 	JUNE 6, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Robert C. Baker, Jr. (Mell, Brownell & Baker, on brief),
for appellants.
Patrick H. Knight for appellee.
*Pursuant to Code § 17.116.010 this opinion is not
designated for publication.
C & C Plumbing, Inc. and its insurer Colonial American
Casualty & Surety Co. (collectively referred to as employer)
appeal the commission's decision awarding benefits to William
Vaughn (claimant). 	Employer argues that the commission erred in
finding that claimant did not refuse its offer of selective
employment. 	We disagree and affirm the commission.
On September 30, 1993, claimant suffered compensable
injuries to his left ankle and knee when he enforced a company
policy prohibiting plumbers from entering employer's warehouse.
A plumber entered the warehouse, and a fight developed between
claimant and the plumber. 	While breaking up the fight, another
employee hit claimant in the knee and stomped on his ankle.
Claimant sought medical treatment from Dr. Donald L. MacNay,
who released claimant to light duty on October 14, 1993 with an

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air cast splint. 	Claimant was released to return to work on
December 2, 1993, and Mike Bailey (Bailey), the warehouse
manager, told claimant that there was no light duty available.
Claimant was assigned to pull orders, a task involving carrying
boxes and loading a truck. 	His ankle began hurting, and Bailey
assigned claimant to take inventory while sitting in a chair.
Claimant testified that the chair had only three wheels and that
the nature of the boxes made it difficult to take inventory from
a seated position.
The commission found that the claimant did not refuse
employer's offer of selective employment:
The claimant attempted to pull heavy items as
directed but was unable to continue. 	We find
no evidence that . . . an appropriate chair
was provided or that the task could be
completed from a seated position because of
the placement of the boxes. 	We also note
that Dr. MacNay did not approve such job nor
is it clearly within the claimant's light
duty restrictions.
On appeal, "we review the evidence in the light most
favorable to the prevailing party." 	R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
"Factual findings of the . . . [c]ommission 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).
Code § 65.2-510 provides that "[i]f an injured employee
refuses employment procured for him suitable to his capacity, he

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shall only be entitled to the benefits provided for in § 65.2-603
during the continuance of such refusal, unless in the opinion of
the Commission such refusal was justified." 	In selective
employment cases, "when the employer establishes that a job offer
has been tendered within the residual capacity of the injured
employee, the burden of persuasion then shifts to the employee to
show justification for refusing the offer of selective work."
Jules Hairstylists, Inc. v. Galanes, 1 Va. App. 64, 66, 334
S.E.2d 592, 593 (1985). 	Although an employer need not always
submit the job description to a claimant's doctor for approval,
"the tender of limited employment must necessarily be based upon
informed medical opinion." 	Talley v. Goodwin Bros. Lumber Co.,
224 Va. 48, 52, 294 S.E.2d 818, 820-21 (1982).
Credible evidence supports the commission's finding that
claimant did not refuse selective employment. 	The commission
specifically found that the job offered by employer did not meet
the light duty restrictions imposed by Dr. MacNay. 	The evidence
established that claimant was unable to perform the work assigned
by employer because no appropriate chair was provided and the
work was difficult to complete from a seated position.
Accordingly, the decision of the commission is affirmed.
Affirmed.