concurring in part, dissenting in part.
I concur with the majority that Rule 5A:11 should not be applied to bar Johnson’s appeal in this case because, even though he did not send a copy of the notice of appeal to opposing counsel in accordance with the rule, the rule’s meaning is unclear and provides a trap for the unwary. Rule 5A:11, which concerns filing appeals from the Industrial Commission, uses the phrase “files with the Clerk” to describe two actions: sending the notice of appeal to opposing counsel and then filing the notice of appeal with the clerk. The rule itself does not require that the notice be sent to opposing counsel. To discern the meaning of the phrase “files with *551the clerk,” the reader of Rule 5A: 11 must turn to Rule 5A:1(10), which defines the phrase to mean both sending the notice to counsel and delivering to the clerk’s office. This construction is particularly confusing since Rule 5A:6, which concerns filing appeals from trial courts, uses the phrase “files with the clerk” to mean only one action: delivering the notice of appeal to the clerk. Rule 5A:6 explicitly states that an appellant must deliver a copy of the notice of appeal to opposing counsel. The explicit direction to send a copy of the notice to counsel may have been inadvertently left out of Rule 5A:11, but it is not fair to apply the serious sanction of dismissal in this case since the inconsistency in the language of the rules is the cause of the filing defect in Johnson’s appeal and no prejudice has been demonstrated.
However, I dissent from the majority’s finding that Johnson did not unjustifiably refuse employment at Hardee’s. I do not read the Industrial Commission’s decision as holding that a person cannot express legitimate concerns to a prospective employer. In this case, the evidence does not show that the Industrial Commission was wrong in determining that the appellant was negative in his interviews at Hardee’s. The employment counselor had discussed appellant’s concerns with the prospective employer and the employer did not consider them to be a problem. Appellant was instructed to be positive in the interview, but he nevertheless brought up his concerns in a negative manner that defeated his prospect of getting the job.
A person receiving worker’s compensation has a duty to cooperate in efforts to get him a job he is capable of performing. Thompson v. Hampton Institute, 3 Va. App. 668, 353 S.E.2d 316 (1987).
Today’s decision is a blueprint for every malingerer faced with an obligation to try to market his remaining work ability: be sufficiently negative when interviewing for a job and your compensation will continue. Thus, the decision undermines the policy of Code § 65.1-63 and is equivalent to the behavior of the appellant in Jules Hairstylists, Inc. v. Galanes, 1 Va. App. 64, 334 S.E.2d 592 (1985), where we affirmed the termination of compensation to an appellant who had not shown up for a scheduled interview.
I believe that credible evidence supported the commission’s finding that appellant unjustifiably refused to cooperate with his pre*552vious employer’s placement efforts and his conduct constitutes an unjustifiable refusal of selective employment under Code § 65.1-63.