                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Humphreys and Senior Judge Overton


CAROLE E. VANCE
                                             MEMORANDUM OPINION*
v.   Record No. 1017-03-3                         PER CURIAM
                                               AUGUST 26, 2003
LOWES OF STAUNTON AND
 LOWES HOME CENTERS, INC.


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (A. Thomas Lane, Jr., on brief), for
             appellant.

             (Mary Beth Nash; Gentry Locke Rakes & Moore,
             on brief), for appellees.


     Carole E. Vance contends the Workers' Compensation

Commission erred in finding that she (1) unjustifiably refused

selective employment offered to her by her employer, Lowes of

Staunton; and (2) failed to prove she was totally disabled as of

November 2001, as a result of her May 25, 1997 compensable

injury by accident.     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.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
         I.   Unjustified Refusal of Selective Employment

     "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).

The employee may satisfy her burden by "put[ting] forward real

and substantial reasons for her refusal . . . such that a

reasonable person desirous of employment would have refused the

offered work."   Johnson v. Virginia Employment Comm'n, 8

Va. App. 441, 452, 382 S.E.2d 476, 481 (1989).

     Ruling that Vance was not justified in refusing employer's

March 29, 2001 offer of selective employment, the commission

found as follows:

          The evidence showed that the employer
          offered [Vance] selective employment that
          complied with her restrictions. [Vance]
          testified specifically that the employment
          as a cashier was too strenuous, however,
          because she was required to move heavy items
          when customers were checking out. The
          evidence showed that [Vance] could call for
          assistance under these circumstances, but
          [she] denied that assistance was
          forthcoming. We agree with [Vance] that
          having to wait lengthy periods for
          assistance while agitated customers
          attempted to check out would be poor
          customer service, but we do not believe that
          [she] was thereby justified in refusing to
          perform the work under such circumstances.

     Credible evidence supports these findings.   Dr. Richard

Miller reviewed the cashier job description in January 2001 and
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opined that Vance could perform that job with some

modifications, including assistance in lifting items and a stool

for her to sit on.   Dr. Miller indicated in a letter that he and

Vance had reviewed the cashier job description and that Vance

felt that she could perform most of the functions of the job.

Dr. Miller noted that Vance would not be able to carry

customers' purchases to vehicles, that she might have some

difficulty pulling stock from overhead areas, and that she would

have difficulty moving objects up to 200 pounds.   Dr. Miller

indicated that Vance needed to have periods of intermittent

sitting and short walks, and acknowledged that employer had

provided Vance with a stool which allowed for free movement.

Dr. Miller approved the cashier job for Vance with

accommodations for her restrictions.

     Vance testified that between March 17, 2001 and March 26,

2001 she performed the job with some modifications and sometimes

had to wait thirty minutes for help.   Although she had a stool

and could scan some items without difficulty, she contended that

she had a "terrible time" performing the cashier job because she

had to turn other items for scanning, to bend and stoop, and to

move items around on the counter.   Vance admitted, however, that

she was never the only cashier on duty, that she had a telephone

to call for help, and that managers and loaders were present in

the store at all times.


                               - 3 -
     On March 26, 2001, Dr. Bart Balint restricted Vance to

light-duty with no lifting over twenty pounds, no twisting, no

bending at the waist or lifting over shoulder height, and no

kneeling, crawling or stooping.    Three days later, Vance

returned to work as a telephone operator.   After forty-five

minutes, she was reassigned to the cashier job because the

telephone operator job was no longer available.    Vance told her

supervisor that the cashier job did not fit within her doctor's

restrictions, and she left work.   Vance admitted that Renny

McGann, the assistant store manager, told her that help would be

available if she needed it and that she would be supplied with a

stool.   Vance considered the cashier job to be demeaning and

"beneath her."

     Georgeanna Logan, employer's former administrative clerk,

testified, however, that she observed Vance performing the

cashier job and that Vance did not appear to have any difficulty

performing her duties.   Logan also testified loaders were always

available to load heavy items into customers' vehicles and to

help the cashiers with bulky items.   Vance told McGann on March

29, 2001, that she could not perform the cashier's job; Vance

and McGann reviewed Vance's restrictions and McGann offered to

make accommodations for Vance.    In addition, Jeffrey Scott

Clendenon, a store manager, testified that other employees were

available to assist Vance if she requested help.   Vance still

refused to perform the cashier's job.
                              - 4 -
     Tina Myers, employer's personnel training coordinator,

testified that after Dr. Miller reviewed the job description and

informed employer of modifications that needed to be made to the

job for Vance, employer offered Vance the cashier job with

modifications, which she performed for a period of time.     The

only problem Vance reported to her at that time was that she

needed a different type of stool.    The employer provided another

stool to Vance.   After Vance's right shoulder injury in January

2001, she worked as a telephone operator.    When Myers received

Dr. Balint's March 26, 2001 light-duty restrictions for Vance,

employer again offered Vance the cashier job with modifications,

which Vance contended she could not do because of her

restrictions.

     Upon this evidence, the commission could reasonably

conclude that Vance was not justified in refusing to perform the

cashier job on March 29, 2001.    Accordingly, the record does not

establish as a matter of law that Vance's evidence sustained her

burden of proving she was justified in refusing employer's offer

of selective employment on March 29, 2001.    See Tomko v.

Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835

(1970).   Thus, the commission's findings are binding and

conclusive on appeal.   Id.




                                 - 5 -
               II.   Disability after November 2001

     Denying Vance's claim for an award of temporary total

disability benefits beginning in November 2001, the commission

found as follows:

               On March 26, 2001, Dr. Balint issued
          light-duty restrictions, advising against
          lifting over twenty pounds. Dr. Miller
          examined [Vance] on December 12, 2001, but
          did not issue any work restrictions. On
          April 20, 2002, Dr. Miller opined that he
          was not sure that [Vance] had any period of
          total disability but that at "the times I
          have seen her and been involved, both
          correlate I felt that she was able to work
          with limitations." Dr. Miller examined
          [Vance] on April 25, 2002, and did not
          mention work restrictions. On June 10,
          2002, however, Dr. Miller opined that
          [Vance] was "totally disabled from a medical
          standpoint" and had been so "since Nov. 01."
          Dr. Miller confirmed this opinion on August
          2, 2002, noting that "her current disabling
          problems [were] right knee trauma and pain,
          neuropathic right sided body pain and her
          right shoulder injury [which] date back to
          her 5/25/97 injury and subsequent problems."

               As noted above, the evidence did not
          show that the claimant's right shoulder
          problems were the result of the May 1997
          accident. Thus, [Vance] suffered from
          compensable right knee problems, which were
          not totally disabling, as shown by
          Dr. Miller's April 20, 2002, opinion.
          [Vance] also suffered from non-compensable
          right-shoulder problems, which also were not
          totally disabling. Thus, it was not clear
          why Dr. Miller opined in June 2002 that
          [Vance] was totally disabled since November
          2001. We agree with the deputy commissioner
          that Dr. Miller's opinion was not credible
          and that the evidence showed that [Vance]
          was able to perform selective employment.


                               - 6 -
     "Medical evidence is not necessarily conclusive, but is

subject to the commission's consideration and weighing."

Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401

S.E.2d 213, 215 (1991).   As fact finder, the commission weighed

Dr. Miller's various medical records and opinions and found

persuasive the absence of contemporaneous notes from Dr. Miller

indicating total disability as of November 2001.   On April 20,

2002, Dr. Miller responded to Vance's attorney's questionnaire

indicating that he felt Vance was capable of light-duty work the

times he had seen her.    Vance's other physicians opined that she

was capable of light-duty work as of November 2001.    In light of

these factors, the commission was entitled to conclude that

Dr. Miller's retroactive opinion was not credible and did not

provide sufficient evidence to prove that Vance was totally

disabled as of November 2001, as a result of her compensable

right knee injury.

     Because the medical evidence was subject to the

commission's factual determination, we cannot find as a matter

of law that the evidence proved Vance was totally disabled as of

November 2001.   Vance did not appeal the commission's finding

that her right shoulder problems were not a compensable

consequence of her May 25, 1997 right knee injury.    Accordingly,

that finding is binding and conclusive upon us on appeal.

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

                                                           Affirmed.
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