COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Frank and Clements 

DICKENSON COUNTY SCHOOL BOARD AND 

 LEGION INSURANCE COMPANY 

 MEMORANDUM OPINION*

v. Record No. 2904-01-3 PER CURIAM 

 MARCH 5, 2002 

EULA CHARLENE WITT 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Richard D. Lucas; Lucas & Associates, on 

brief), for appellants. 

 (Paul L. Phipps; Lee & Phipps, P.C., on 

brief), for appellee. 

 Dickenson County School Board and its insurer (hereinafter 

referred to as "employer") contend the Workers' Compensation 

Commission erred in finding that Eula Charlene Witt (claimant) 

proved she was justified in refusing selective employment 

offered to her by employer. Upon reviewing the record and the 

parties' briefs, 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). 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
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Factual findings made by the commission 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). 

 "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 employee to accept the job.'" Id. at 515, 382 S.E.2d at 489 

(quoting Ellerson v. W.O. Grubb Steel Erection Co., 1 Va. App. 

97, 98, 335 S.E.2d 379, 380 (1985)). 

 "When the employer establishes that selective employment 

was offered to an employee that was within the employee's 

capacity to work, the employee bears the burden of establishing 

justification for refusing the offered employment." Food Lion,

Inc. v. Lee, 16 Va. App. 616, 619, 431 S.E.2d 342, 344 (1993). 

"To support a finding of justification to refuse suitable 

selective employment, 'the reasons advanced must be such that a 

reasonable person desirous of employment would have refused the 

offered work.'" Id. (citation omitted). 

 The commission found that the claimant made a bona fide

attempt to return to light-duty work, but due to her back pain 

she was unable to continue working. Although Dr. Richard S. 

Duncan opined that claimant could return to work with 

restrictions, "the fact that contrary evidence may be found in 
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the record is of no consequence if credible evidence supports 

the commission's finding." Manassas Ice & Fuel Co. v. Farrar, 

13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991). The 

claimant's testimony regarding her multiple attempts to perform 

the light-duty work offered by employer and her inability to do 

so, emergency room reports reflecting claimant's reports of back 

pain after several attempts to return to light-duty work, and 

Drs. Duncan and O'Connell's opinions that claimant's pain 

complaints are real constitute credible evidence sufficient to 

support the commission's findings that claimant made a bona fide

attempt to perform light-duty work offered to her by employer, 

but was unable to do so because of her back pain. Those 

findings are binding and conclusive upon us on appeal, and were 

sufficient to support the commission's decision that claimant 

was justified in refusing selective employment. 

 For these reasons, we affirm the commission's decision. 

Affirmed.