dissenting, joined by Judges Benton, Coleman and Keenan.
I respectfully dissent from the majority opinion in this case. In the panel decision, Johnson v. City of Clifton Forge, 7 Va. App. 538, 375 S.E.2d 540 (1989), for the reasons stated therein, we held that “where the commission determines on sufficient credible evidence that an employee unjustifiably refuses to cooperate with the placement efforts of the employer, such conduct is tantamount to an unjustified refusal of selective employment under Code § 65.1-63 and an actual offer of employment is not a prerequisite to a finding of such refusal.’’'’ Id. at 547, 375 S.E.2d at 546 (emphasis added). This holding is consistent with prior decisions of the commission and is reaffirmed by the majority en banc in this case. I continue to concur with this holding.
Pertinent to the present rehearing en banc, the holding that an actual offer of employment is not a prerequisite to a finding of a refusal of selective employment under Code § 65.1-63 is premised, in part, on the analysis that this Code section would be rendered *382meaningless if an employee could defeat its provisions by purposefully conducting himself in an interview so as to ensure that a prospective employer would not make an offer of employment.1 Implicit in this analysis, however, is that the employer has the burden of showing that the employee purposefully conducted himself in the interview so as to ensure that the prospective employer would not make an offer of employment. The requirement that the employer prove purposeful conduct by the employee is placed on the employer because it is a matter of human experience and common sense that many subjective factors may form the basis of an unfavorable impression by a prospective employer at a job interview which causes a prospective employer not to offer a job to an otherwise qualified employee. Similarly, such an impression is not always the result of purposeful conduct by the prospective employee and may be, in fact, contrary to the desire and intent of the employee. Thus, even where the prospective job is within the employee’s capacity, proof of an unsuccessful interview alone is not sufficient to invoke the provisions of Code § 65.1-63.
In this context, my disagreement with the majority begins with the standard of appellate review applicable to this appeal. The essential facts are not in dispute. What is in dispute is the sufficiency of the employer’s evidence to establish that Johnson purposefully conducted himself at the job interview to ensure that Hardee’s would not make him an offer of employment. Our review of the sufficiency of the evidence is one of law. See Payne v. Master Roofing & Siding, Inc., 1 Va. App. 413, 414, 339 S.E.2d 559, 560 (1986). In my view, the standard of review expressed in V.P.I. & State University v. Wood, 5 Va. App. 72, 74, 360 S.E.2d 376, 377( 1987), that the commission’s findings of fact are conclusive and binding on the appellate court if based on credible evidence, is not dispositive of the issue presented by this appeal. Moreover, the majority’s reliance on this standard has compelled it to reach what I believe is an unsupportable conclusion of law in this case.
The essential undisputed facts are that Johnson is a twenty-nine year old laborer with a right “foot drop” condition requiring the use of a brace and prescription shoes. He left school at age fifteen or sixteen after completing the sixth grade. He is functionally illiterate. Part of the rehabilitation program provided by the employer *383was an educational program at Total Action Against Poverty which brought Johnson’s reading skills to a fourth-grade level and his mathematical skills to a fifth-grade level. He is unable to engage in heavy labor and is limited in his lifting ability because of his back injury. He has been essentially unemployed since his original injury in 1980.
The cooking job at Hardee’s was suitable to Johnson’s capacity. The job description was approved by Dr. Varner. Johnson’s concerns about his ability to perform the job were adequately addressed by the rehabilitation consultant in conjunction with the prospective employer. The prospective employer was aware of Johnson’s disabilities. Prior to the interview, the consultant counseled Johnson “to be positive in his attitude toward the position.” Johnson appeared at the interview neatly dressed. He expressed his concerns about his ability to perform the job in a truthful manner. He did not misrepresent the extent of his disabilities. Hardee’s did not make an offer of employment.
Upon this evidence, a majority of the commission specifically found: “We agree with the contention of [Johnson] that his concerns were legitimate in nature, but we cannot help but believe that [Johnson] was fully aware that the manner in which he raised the issues with the prospective employer were such that it would prevent him from obtaining the position.” This conclusion apparently was reached, in part, based on the testimony of the manger at Hardee’s that Johnson was not offered the job because the assistant manager got the impression at the interview that Johnson did not want to work and in part, because Johnson’s reference to his concerns at the interview were “negative actions” rather than positive. The commission characterized Johnson’s actions as “negative” because the rehabilitation consultant had counseled him “to be positive in his attitude toward the position” at the interview and because his concerns had been addressed previously by the consultant. Based on these conclusions the commission determined that Johnson’s conduct was tantamount to a refusal of selective employment which invoked the provisions of Code § 65.1-63. The dispositive issue on appeal is whether the employer produced sufficient evidence as a matter of law to support that determination.
The evidence clearly supports the commission’s finding that Johnson’s concerns about his ability to perform the job at *384Hardee’s which he expressed at the job interview were “legitimate.” Legitimate concerns are those founded in truth. The employee has the right, if not the duty, to discuss legitimate concerns directly with a prospective employer. The employee is not prevented from doing so merely because he or she has been given assurances by the insurance carrier’s rehabilitation consultant that such concerns have been addressed. The very purpose of the job interview is to permit both the prospective employer and the employee to determine in advance that the intended relationship will be mutually acceptable. The truthful discussion of the employee’s concerns about his disabilities is a part of that process, even if it results in the prospective employer’s unwillingness to offer employment.
In this case, there is no evidence that Johnson misrepresented the extent of his disabilities. He is required to wear a leg brace and prescription shoes, is functionally illiterate and is not an experienced cook. His successful performance of the proposed job would depend on the success of the job training to be furnished by the prospective employer. In addition, Johnson lived one mile from Hardee’s and his automobile was in a state of disrepair. While, as the majority notes, the employer’s insurance carrier had voluntarily agreed to advance money to repair the automobile, this money had not in fact been advanced and the car was not in a reliable condition at the time of the interview. In short, under the best of circumstances, Johnson could not present himself at the interview as the most desirable of employees.
Furthermore, there is no objective evidence that Johnson’s truthful discussion of his disabilities and the condition of his automobile at the interview was reasonably expected or purposefully designed to prevent an offer of employment being made to him. He appeared at the interview neatly dressed and was truthful. The prospective employer was already aware of his disabilities. In contrast, the only evidence that he did not legitimately express his concerns was the subjective impression formed by the prospective employer. In short, all that can be concluded from the facts of this case is that, in the opinion of the prospective employer, Johnson did not interview well. Under these circumstances, the evidence is not sufficient as a matter of law to support the commission’s finding that Johnson refused employment. Where, as here, the employee has legitimate concerns about his abilities to perform a *385prospective job, is truthful and does not misrepresent the extent of his disabilities, he is justified in raising his concerns at a job interview. Under those circumstances without evidence that the employee purposefully raised his or her concerns to prevent an offer of employment being made, mere evidence of the subjective impression of the prospective employer, formed on the basis of a poor interview, that he or she would not be a good employee does not satisfy the employer’s burden under Code § 65.1-63.
Finally, in contrast to this analysis, in my view, the majority rather than reviewing the sufficiency of the evidence as a matter of law, relies merely on the credible evidence standard of review to affirm the commission’s conclusion that Johnson’s conduct was calculated to prevent a job offer being made by Hardee’s. I do not disagree that the prospective employer formed an unfavorable impression of Johnson’s desire to work and that Johnson perhaps could have been more “positive” at the interview. Perhaps, if he had not truthfully mentioned his concerns at all, an offer would have been made by Hardee’s. The fact remains, however, that Johnson had a right to discuss his legitimate concerns at the interview and the evidence that he did so purposefully to ensure that Hardee’s would not offer him a job is at best equivocal. Equivocal evidence is not sufficient as a matter of law to sustain the employer’s burden of proof in this case.
For these reasons I would reverse the decision of the commission.
Similarly Code § 65.1-88 would be rendered meaningless if negative conduct by the employee were permitted.