Newport News Shipbuilding & Dry Dock Co. v. Lawrence

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Overton

NEWPORT NEWS SHIPBUILDING AND
DRY DOCK COMPANY
OPINION BY
v. Record No. 3235-01-1 JUDGE ROSEMARIE ANNUNZIATA
AUGUST 20, 2002
STEVEN J. LAWRENCE

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Jonathan H. Walker; Mason, Cowardin & Mason,
on brief), for appellant. Appellant
submitting on brief.

No brief or argument for appellee.

The Workers' Compensation Commission, on review of a deputy

commissioner's decision, awarded Steven J. Lawrence temporary

partial disability benefits, suspended from September 22, 1999

until September 12, 2000. Newport News Shipbuilding and Dry

Dock Company (employer) appeals the commission's award of

benefits after August 24, 1999, contending Lawrence

unjustifiably refused selective employment on that date and

failed to timely cure that refusal. For the reasons that

follow, we affirm.
 I. Background

Lawrence injured his left knee while working for employer

on February 23, 1987. Thereafter, he was restricted from

climbing, kneeling, squatting, and standing for more than four

hours.

Lawrence began vocational testing in a vocational placement

program on August 24, 1999. The evidence proved that Lawrence

arrived twenty minutes late for testing on that date; his tardy

arrival disrupted other members of his class. On one of the

tests, he did nothing but fill in his name. He also failed to

complete another test and refused an offer of a second

opportunity to complete the tests. Lawrence also insisted on

tape recording the class, despite the instructor's direction not

to do so and refused to turn his tape recorder off when

requested. He also disrupted class by questioning the

credentials of several staff members.

After the first class, Lawrence attended the vocational

rehabilitation classes sporadically. He was often late. He

failed to attend class on September 1, 1999 and September 3,

1999, and arrived more than two hours late to class on September

2, 1999. Other members of the class voiced complaints about

Lawrence's disruptions.

On September 7, he attended class dressed inappropriately

for an interview that had been scheduled for him. In addition,

he did not attend the interview and failed to offer an
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explanation. Between September 7 and September 22, Lawrence

continued to arrive late for appointments, failed to follow up

on job leads, and failed to attend other interviews.

The deputy commissioner found that Lawrence "unjustifiably

refused vocational rehabilitation offered by the employer in

August and September of 1999." He held that Lawrence cured this

refusal by securing selective employment on March 7, 2000.

Because the deputy commissioner found that Lawrence's refusal

was cured, he awarded Lawrence temporary partial disability,

suspended from September 22, 1999 until September 12, 2000.

The full commission affirmed, noting that the "deputy

commissioner's decision that the claimant refused vocational

rehabilitation was based on a series of acts that ended on

September 22, 1999." On that ground, it found "no error in the

deputy's decision to suspend benefits as of September 22, 1999."

The commission also held that the six-month period for

curing a refusal of selective employment under Code § 65.2-510

begins when the employer files its application for hearing. The

employer filed its application on October 19, 1999. It held,

therefore, that had Lawrence's refusal occurred on August 24,

1999, his cure was timely.

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 II. Analysis

A. Calculation of Time to Cure Refusal

The commission found that Lawrence constructively refused

selective employment by failing to cooperate throughout his

vocational rehabilitation program, beginning on August 24, 1999

and continuing through September 22, 1999. Reasoning that

Lawrence's refusal of selective employment culminated on

September 22, 1999, the commission suspended benefits on that

date, making it "the last day for which compensation was paid

before suspension." Code § 65.2-510(C). Pursuant to the code,

the commission calculated the cure period from that date. See

id. (providing that an unjustified refusal of suitable

employment may be cured within six months "from the last day for

which compensation was paid before suspension"). It concluded,

therefore, that when Lawrence obtained employment on March 7,

2000, less than six months from September 22, 1999, he cured his

refusal to obtain selective employment. Alternatively, the

commission found that the cure period began on October 19, 1999,

the date the employer filed its application, such that Lawrence

cured his refusal by obtaining employment on March 7, 2000.

The employer claims that the commission should have

suspended Lawrence's benefits on August 24, 1999, the date, it

contends, that Lawrence began to constructively refuse

employment. The employer argues, therefore, that Lawrence's

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opportunity to cure his unjustified refusal began on August 24.

See id. We disagree and affirm the decision of the commission.

An injured employee who refuses employment suitable to his

capacity is not entitled to any compensation during the period

of refusal unless the refusal is justified. Code § 65.2-510(A).

"'An employer seeking to terminate compensation benefits based

on refusal of selective employment must establish "(1) a bona

fide job offer suitable to the employee's capacity; (2) procured

for the employee by the employer; and (3) an unjustified refusal

by the employee to accept the job."'" Gallahan v. Free Lance

Star Publ. Co., 37 Va. App. 114, 117, 554 S.E.2d 685, 686 (2001)

(quoting Hillcrest Manor Nursing Home v. Underwood, 35 Va. App.

31, 37, 542 S.E.2d 785, 788 (2001) (quoting Ellerson v. W.O.

Grubb Steel Erection Co., 1 Va. App. 97, 98, 335 S.E.2d 379, 380

(1985))). The employee has an opportunity to cure his

unjustified refusal of suitable employment within six months

"from the last day for which compensation was paid before

suspension." Code § 65.2-510(C). If he fails to do so, his

benefits shall terminate beginning on the date he refused the

offer of employment. Id.

We have held that "an employee's unjustified refusal to

cooperate with placement efforts of the employer is tantamount

to an unjustified refusal of selective employment under Code

§ 65.1-63 [now Code § 65.2-510]." James v. Capitol Steel

Construction, 8 Va. App. 512, 515, 382 S.E.2d 487, 489 (1989);
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accord UPS v. Godwin, 14 Va. App. 764, 767, 418 S.E.2d 910, 912

(1992) ("An unjustified refusal to attend an interview or an

employee's refusal to cooperate at an interview may constitute

an unjustified refusal of employment."); Johnson v. City of

Clifton Forge, 9 Va. App. 376, 378, 388 S.E.2d 654, 655 (1990)

(en banc) (failure to keep interview suitable for employment, or

unreasonable behavior during such an interview may constitute an

unjustified refusal (citing Jules Hairstylist, Inc. v. Galanes,

1 Va. App. 64, 344 S.E.2d 592 (1985))). In the case before us,

we hold that the commission may properly base its conclusion

that an employee has constructively refused employment on a

course of conduct. See Kachinski v. Workmen's Compensation

Appeal Board, 532 A.2d 374, 380 (Penn. 1987) (holding that

employee's failure to pursue job referrals procured by employer

provides reason to terminate disability benefits); Joyner v.

District of Columbia Dep't of Employment Svcs., 502 A.2d 1027,

1031 (D.C. 1986) (same). Furthermore, the commission may

suspend benefits and calculate the claimant's cure period at the

culmination of that course of conduct.

Whether an employee's failure to cooperate with an

employer's rehabilitative efforts constituted a refusal of

employment is a question of fact to be determined from the

totality of the evidence. UPS, 14 Va. App. at 767, 418 S.E.2d

at 912; Pettiford v. S & K Famous Brands, Inc., VWC 144-57-87

(1992) (concluding from the totality of the circumstances that
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claimant's failure to attend meetings with rehabilitation

counselor and failure to follow up on various job leads

constituted a refusal of selective employment). Accordingly,

the commission's resolution of this issue, "if supported by

credible evidence, [is] conclusive and binding on this Court."

Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d

335, 340 (1998). Evidence to the contrary in the record "is of

no consequence if there is credible evidence to support the

commission's findings." Russell Loungewear v. Gray, 2 Va. App.

90, 95, 341 S.E.2d 824, 826 (1986).

In this case, the commission held that the totality of

Lawrence's behavior between August 24, 1999 and September 22,

1999 constituted an unjustified refusal of selective employment.

Although the commission considered evidence of Lawrence's

failure to pursue job leads provided by his employer on

September 22, 1999, his failure to attend an interview arranged

by his employer on September 7, 1999, and his numerous

interruptions throughout the vocational rehabilitation program,

it did not find that any single act constituted a refusal of

selective employment. Rather, the commission calculated

Lawrence's cure period beginning on September 22, 1999,

implicitly finding that the totality of Lawrence's behavior

throughout the period demonstrated his unwillingness to

cooperate with his employer's rehabilitative efforts. See

James, 8 Va. App. at 517, 382 S.E.2d at 490 (upholding
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commissioner's determination that claimant unjustifiably refused

to cooperate with rehabilitation efforts based on a series of

acts and omissions by the claimant, which demonstrated his

unwillingness to cooperate). Because the totality of Lawrence's

behavior from August 24 through September 22 constituted an

unjustifiable refusal of selective employment, we find no error

in the commission's determination to suspend benefits and

calculate Lawrence's cure period at the culmination of this

period. 1 Accordingly, we do not disturb the commission's award

on this ground.

B. Marketing Residual Capacity

The employer claims the evidence was insufficient to

support the commission's finding that Lawrence made reasonable

efforts to market his remaining work capacity and that its

decision to award benefits to Lawrence should be reversed.

Specifically, the employer argues that the commission's reliance

on Lawrence's testimony was error because, as the commissioner

noted, his "exaggerations and misstatements demonstrate his

repeated willingness to misrepresent facts to pursue a benefit."

We disagree.

[I]n deciding whether a partially disabled
employee has made reasonable effort to find
suitable employment commensurate with his
abilities, the commission should consider

1
Because we find that the cure period was properly
calculated from September 22, 1999, we need not address the
commission's alternative holding that the cure period began on
the date the employer filed its application.
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 such factors as: (1) the nature and extent
of employee's disability; (2) the employee's
training, age, experience, and education;
(3) the nature and extent of employee's job
search; (4) the employee's intent in
conducting his job search; (5) the
availability of jobs in the area suitable
for the employee, considering his
disability; and (6) any other matter
affecting employee's capacity to find
suitable employment. The commission, of
course, determines which of these or other
factors are more or less significant with
regard to the particular case.

National Linen Service v. McGuinn, 8 Va. App. 267, 273, 380

S.E.2d 31, 34-35 (1989).

In this case, the commission found that Lawrence's

testimony about his marketing efforts and employment history

during the period in question satisfied the requirements of

McGuinn. The commission took Lawrence's lack of credibility

into consideration, but gave greater weight to his employment

history, which corroborated his testimony regarding the

marketing efforts he made. Therefore, the commission accepted

his testimony on this issue, although rejecting his testimony on

several others. Such reliance was within the discretion of the

commission and did not constitute error. See Street v. Street,

25 Va. App. 380, 387, 485 S.E.2d 655, 668 (1997) (en banc) ("It

is well established that the trier of fact ascertains a witness'

credibility, determines the weight to be given to their

testimony, and has the discretion to accept or reject any of the

witness' testimony." (citation omitted)). Accordingly, the

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evidence, including Lawrence's testimony regarding his

employment efforts and his employment history, supports the

commission's determination that Lawrence adequately marketed his

residual capacity, and we will not disturb its decision on this

ground.

Affirmed.

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