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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