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.