dissenting.
I dissent because I believe there are valid policy reasons for placing the burden of proof on the claimant rather than the employer in this type of case.
First, by placing the burden of proof on the employer, the claimant frequently will be able to obtain additional benefits to which he is not entitled. After a claimant has made a full recovery and reported to the employer that he is willing to accept selective employment, the employer will have to begin paying the claimant even if no job is currently available and even though the job would have been available if the claimant had properly accepted it when it was first offered. Thompson v. Hampton Institute, 3 Va. App. 668, 353 S.E.2d 316 (1987). True, the employer can arrange for a medical exam and, after receiving the physician’s report, pay the claimant up to that date and then file an application for a change of condition. Still, the claimant, even if he knows he is fully recovered and not entitled to benefits, may, with impunity and within the law, always obtain those benefits assessed before the employer files for a change of condition.
On the other hand, by placing the burden on the claimant, the claimant will not lose compensation to which he is entitled. If the employer refuses to pay, the claimant’s compensation will be paid retroactive to the date on which the claimant notified the employer that he was willing to accept selective employment. Furthermore, there is no incentive on the employer frivolously to deny benefits because the employer may be assessed with the whole costs of the proceedings, including a reasonable attorney fee. See Code § 65.1-101.
Another reason for placing the burden of proof on the claimant is the recognized rule that the burden of proof of an issue should rest on the party having peculiar knowledge of the matter. C. Friend, The Law of Evidence in Virginia § 80 (3d ed. 1988). In this case, the rule is particularly important. When the claimant *226refuses selective employment, the employer usually loses contact with him and cannot observe him on a day-to-day basis to determine whether his physical condition has improved. The claimant, of course, remains in complete control of his situation and is aware of the status of his recovery. It is reasonable to consider that all of the claimants to whom the rule would apply have been determined by the commission to have failed to cooperate in mitigating their losses. An employer should not be burdened with keeping watch on a claimant whose benefits have been suspended or terminated because he is uncooperative.
It is not a radical idea for a party seeking to change his status to have the burden of proof on an issue. Id. I believe it furthers the purposes of the Workers’ Compensation Act to put the burden of proof on the claimant to ensure that persons who are not entitled to money will not receive it while at the same time not preventing persons entitled to compensation from receiving it. I would reverse the award for a rehearing with the claimant having the burden of proving his continued disability.