C&C Plumbing, Inc. v. William Vaughn

• Court: Court of Appeals of Virginia
• Decided: June 6, 1995
• Docket: 2390944
• Status: Unpublished

Opinion

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.

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 * Pursuant to Code § 17.116.010 this opinion is not designated for publication. 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

2 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.