Johnson v. City of Clifton Forge

UPON REHEARING EN BANC

Opinion

MOON, J.

The sole issue in this workers’ compensation appeal is whether the evidence was sufficient to prove that Willie H. Johnson unjustifiably refused employment procured for him suitable to his work capacity. Code § 65.1-63. We affirm the Industrial Commission and hold that an employee who so unreasonably behaves at a job interview that he undermines the prospect of getting a job available to him is barred by Code § 65.1-63 from further compensation because his actions are the equivalent of unreasonably refusing selective employment.

Code § 65.1-63 provides that “[i]f an injured employee refuses employment procured for him suitable to his capacity, he shall not be entitled to any compensation at any time during the continuance of such refusal, unless in the opinion of the Industrial Commission such refusal was justified.”

In Ellerson v. W.O. Grubbs Steel Erection Co., 1 Va. App. 97, 98, 335 S.E.2d 379, 380 (1985), we held that “in order to support a finding [of refusal] based upon Code § 65.1-63, the record must disclose (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.” Furthermore, a person receiving workers’ compensation has a duty to cooperate in efforts to get him a job he is capable of performing. Cf. Thompson v. Hampton Inst., 3 Va. App. 668, 353 S.E.2d 316 (1987). Here, there was no actual job offer. The employer did not offer Johnson a job because of Johnson’s behavior at the job *378interview. In other cases, the commission has held that there does not have to be an actual offer of employment as a prerequisite to a finding of an unjustified refusal where no offer is made due to a claimant’s failure to attend an interview. Pleasants v. Fairfax County Police Dep’t, 58 O.I.C. 289 (1978); Flowers v. Clinebell, 57 O.I.C. 124 (1976). In Jules Hairstylist, Inc. v. Galanes, 1 Va. App. 64, 344 S.E.2d 592 (1985), we agreed with the commission and held that a failure to keep an interview is tantamount to refusal of an offer. In this case, we hold that when an employee’s conduct at a job interview is unreasonable and calculated to prevent an actual offer of employment, similar reasoning dictates a conclusion that such conduct is tantamount to an unjustified refusal of employment. In such a case, compensation may be denied assuming the job was suitable to the employee’s work capacity.

On appeal, the Industrial Commission’s findings of fact are conclusive and binding if based on credible evidence. V.P.I. & State Univ. v. Wood, 5 Va. App. 72, 74, 360 S.E.2d 376, 377 (1987). The facts, construed in the light most favorable to the prevailing party before the commission, are as follows. Due to physical and educational problems, Johnson’s job skills were limited even before his accident. He had a right “foot drop” condition which required the use of a brace. He left school at age 15 or 16 after completing the sixth grade. In 1980, Johnson, while employed by the City of Clifton Forge, Virginia, sustained a compensable back injury. Since that time, with the exception of two brief periods during 1983, he has received temporary total disability benefits.

In 1981 Johnson’s treating physician determined that he could return to full time work with some restrictions or be retrained for other work through vocational rehabilitation. The employer and insurer initiated rehabilitation efforts in 1982 to assist Johnson in his return to the work force. Johnson began an evaluation work adjustment training program at the Alleghany Highland Work Center. During the course of the program, he missed numerous days, and overall, performed poorly and was a disruptive force due to excessive talking. The foreman of the woodshop was left with the impression that Johnson saw the program “simply as an obligation to maintaining his disability.” In addition, Johnson failed to keep appointments with his doctor, a counselor for the Virginia *379Department of Rehabilitative Services, and his rehabilitation consultant.

Patricia B. Childers, his rehabilitation consultant, worked with Johnson from August, 1984, to October, 1986, and found that he was generally not cooperative. She arranged for Johnson’s enrollment in an eighth-grade equivalency program and, at his request, a small engine repair class. She also attempted to find employment for him. His attendance in the eighth-grade equivalent program was sporadic. Although he obtained a certificate indicating completion of the small engine repair program, his instructor said he did not regularly attend classes. Johnson’s reading skills tested on a fourth-grade level and his mathematics skills tested on a fifth-grade level.

In May 1986, the consultant located a job for Johnson as a part-time cook at Hardee’s Restaurant in Covington, where Johnson resided. Johnson’s doctor approved this job as being within Johnson’s capacity. However, Johnson expressed concerns about his ability to perform the job because of his blood pressure. Before his blood pressure could be checked, the job became unavailable. The blood pressure check revealed that Johnson had no significant blood pressure problem.

With this background, we address the specific incidents that gave rise to the issue on this appeal. In September, 1986, the consultant again found an opening for Johnson as a part-time cook at Hardee’s. Again, Johnson’s doctor approved the job description as being within Johnson’s work capacity. After a job interview was scheduled, the consultant met with Johnson to prepare him for the interview. At that time Johnson expressed concerns about his ability to perform this job. These concerns were (1) lack of reliable transportation to work, (2) limited reading ability, (3) fear of falling on a wet or greasy floor, and (4) not being an experienced cook. The job consultant advised Johnson that the insurance carrier would assist Johnson financially in having his automobile repaired so that he could get to the job and that Hardee’s would provide job training for him. The transportation offer was made even though an employer is not required to provide transportation. See Klate Holt Co. v. Holt, 229 Va. 544, 547, 331 S.E.2d 446, 448 (1985). The consultant further advised Johnson that she had discussed his inability to read with Hardee’s manager and the manager had stated that it was not a problem because the proce*380dures were simple and he would not need to read. Johnson would be trained to recognize the twenty symbols or letter combinations used at Hardee’s to identify orders to be prepared by the cooks. The job consultant also advised Johnson that the employer washed the floor frequently to prevent hazards in walking. Prior to the interview, Johnson discussed with his doctor his fear of slipping on a wet floor. His doctor told him to be careful. The doctor apparently did not think it was a concern that should keep Johnson from taking the job.

The consultant advised Johnson that, in order to get the job, he needed to present himself in a “positive light” to the employer rather than presenting himself in a “negative” manner by raising concerns about his inability to perform the job. At the job interview, however, Johnson expressed his same four concerns to Hardee’s assistant manager in a manner which the manager termed “negative.” The manager testified that had Johnson interviewed well he would have been offered the job, but in her opinion, at the interview, Johnson showed no interest in getting a job and made excuses for not wanting a job. We believe Johnson’s behavior, in light of assurances previously made by the consultant and his own physician, provided credible evidence from which the commission could have inferred that Johnson knew that he was acting in a way that prevented him from getting the job and that his actions were unjustified.

The commission could reasonably question why Johnson believed it necessary to bring up the transportation concern with the prospective employer. Johnson only lived one mile from the place of employment. He had been advised by the job consultant that money would be provided to repair the automobile he would use for transportation. It was his duty to cooperate in trying to find a job. We, like the commission, can only conclude that he told the prospective employer that he might not be able to get to work on time for the purpose of discouraging the employer about his prospects as an employee.

Johnson’s other three concerns were legitimate. It was reasonable for him to verify with the employer that the job was suitable for him. Johnson had a right to inquire into the safety of the working conditions. He had a right to be forthright about his reading ability and cooking skills. Johnson, however, did have some reading ability — fourth grade — and did prepare his own *381meals at home. Rather than asking the prospective employer if she thought Johnson could do the job with his limitations, Johnson expressed to the employer his own doubt that he could do the job and his doubt that he could get to work on time even if he could do the job.

The evidence supports the conclusion that the job at Hardee’s provided for Johnson by his employer’s insurer was suitable to Johnson’s work capacity. Johnson’s ability to perform the job was adequately proved by credible evidence. His doctor approved the job description as being within his capacity and the prospective employer found Johnson’s skills adequate. Additionally, Johnson was to receive on-the-job training for ninety days. We also find adequate credible evidence to support the commission’s conclusion that Johnson’s behavior at the interview was unreasonable and calculated to prevent a job offer and that such conduct was tantamount to the refusal of a job offer.

Therefore, we affirm the commission’s decision.

Affirmed.

Barrow, J., Cole, J., Duff, J., and Hodges, J., concurred.