Fairfax Co. School Board v. Lonnie M. Wright

• Court: Court of Appeals of Virginia
• Decided: April 15, 1997
• Docket: 1903964
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Bray and Senior Judge Hodges Argued by Teleconference

FAIRFAX COUNTY SCHOOL BOARD MEMORANDUM OPINION * BY v. Record No. 1903-96-4 JUDGE JERE M. H. WILLIS, JR. APRIL 15, 1997 LONNIE M. WRIGHT

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Michael N. Salveson (Hunton & Williams, on briefs), for appellant. Robert O. Goff for appellee.

On appeal from a decision of the Workers' Compensation

Commission reinstating benefits to Lonnie M. Wright, Fairfax

County School Board (Fairfax) contends that the commission erred

in determining that employment leads and other vocational

assistance offered to Wright did not constitute "vocational

rehabilitation efforts," the refusal of which would justify

suspension of compensation. We reverse and remand.

The commission's decision was based upon Code § 65.2-603

which provides in relevant part that: A. 3. The employer shall also furnish . . . reasonable and necessary vocational rehabilitation services. Vocational rehabilitation services may include vocational evaluation, counseling, job coaching, job development, job placement, on-the-job training, education and retraining, and shall be provided by a certified rehabilitation provider . . . . Such services shall take into account the * Pursuant to Code § 17-116.010 this opinion is not designated for publication. employee's preinjury job and wage classifications; his age, aptitude and level of education; the likelihood of success in the new vocation; and the relative costs and benefits to be derived from such services.

B. The unjustified refusal of the employee to accept such . . . vocational rehabilitation services when provided by the employer shall bar the employee from further compensation until such refusal ceases . . . .

I.

Fairfax employed Wright as a delivery truck driver for over

twenty years. On April 22, 1991, Wright injured his back while

working. Following surgery in July, 1991, he returned to work

but re-injured his back. Fairfax accepted Wright's claim, and

provided him compensation pursuant to an award for temporary

total disability. On February 14, 1995, Dr. Stephen Sirota examined Wright.

He reported that Wright opposed lumbar epidural injections or

further surgery. Dr. Sirota stated that: "Unfortunately, in his

present condition I do not feel that he can do any meaningful

physical labor and probably would not be able to tolerate even a

full time sedentary job."

On April 6, 1995, Dr. Ronald Childs released Wright to work

four hours per day for one month, followed by full time sedentary

work with no lifting over twenty pounds. On April 27, 1995, Dr.

Sirota released Wright for "light sedentary work," under the same

conditions set by Dr. Childs.

On July 28, 1995, Dr. Sirota reported that Wright slept with

- 2 - difficulty, could sit for only fifteen minutes, and could walk

only one or two blocks.

On August 14, 1995, Dr. Katherine Maurath examined Wright

and reported that he was "unable to do any physical work at this

time." Dr. Maurath concluded that: 4. Given his inability to read and physical disability, I would recommend that this patient be considered for retirement on medical disability. He is unable to do the job for which he was hired and cannot, in his current state, be replaced in a sedentary position because of his inability to read.

On November 27, 1995, Dr. Thomas Schuler released Wright to

work four hours per day, with one hour standing, one hour

walking, and two hours sitting. He restricted Wright from

lifting more than fifteen pounds, bending, climbing, kneeling,

twisting, squatting, pushing, or pulling. On December 20, 1995,

Dr. Schuler noted that Wright was "still having pain."

On January 19, 1996, Dr. Maurath reexamined Wright and

imposed the following restrictions:

1. Sedentary work is recommended for this patient with frequent allowance for position changes. He should not lift any object heavier than 2 lbs. He is not permitted to bend. Essentially, he is restricted to sedentary work, however, the patient is functionally illiterate, so any work involving written or reading materials is not possible for him. It would appear to me that he is permanently and totally disabled secondary to a combination of his lumbar pathology and his limited educational level and reading skills.

Dr. Maurath based her opinion concerning Wright's literacy upon

- 3 - his eighth grade level of education, discussions with Mr. and

Mrs. Wright, and her "extensive experience with work related

rehabilitation efforts" as a physiatrist.

II.

In February, 1995, Maria Raimundi, a case manager for CRA

Managed Care, Inc., began trying to help Wright find suitable

employment. She met with Drs. Childs and Sirota to determine

Wright's physical abilities, and later received a physical

capacity evaluation form from Dr. Schuler. Ms. Raimundi stated

that she did not review Dr. Maurath's reports. Starting in June, 1995, Ms. Raimundi met weekly with Wright.

She referred to the Dictionary of Occupational Titles to

determine what jobs were suitable for him and presented him with

a list of approximately ninety leads. This list consisted

primarily of driver/delivery jobs. She testified that Wright

applied to two jobs only because he felt that he was incapable of

meeting the physical and intellectual requirements. Ms. Raimundi

neither contacted the proposed employers regarding the specific

requirements of the positions, nor provided Wright's physicians

with job descriptions.

Ms. Raimundi testified that she was unable to obtain an

objective appraisal of Wright's literacy, but was aware that he

had completed the eighth grade. She offered to assist him in

filling out applications and provided him with information

regarding continuing his education.

- 4 - III.

Fairfax contends that the commission erred in refusing to

suspend Wright's benefits because he failed to cooperate with

vocational rehabilitation efforts, pursuant to Code § 65.2-603.

Fairfax argues that the "reasonableness and necessity" of the

vocational rehabilitation services provided to Wright raises a

mixed question of law and fact, and that we should review the

commission's opinion de novo. Cf. City of Salem v. Colegrove,

228 Va. 290, 293, 321 S.E.2d 654, 656 (1984). This argument is

without merit. No doubt, the employer's job placement program

constitutes "reasonable and necessary" vocational rehabilitation

efforts under Code § 65.2-603. However, that is not the issue

before us. Rather, the question presented here is whether

credible evidence in the record supports the commission's finding

that the employer failed to establish that Wright unjustifiably

refused vocational rehabilitation services. On appeal, we view the evidence in the light most favorable

to the party prevailing below. Crisp v. Brown's Tysons Corner

Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 196, 196 (1986).

The findings of the commission, if based upon credible evidence,

are conclusive and binding on this Court. Morris v. Badger

Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876,

877 (1986).

First, we reject Wright's assertion that no vocational

rehabilitation services were provided. Code § 65.2-603 requires

- 5 - that vocational rehabilitation services "shall be provided by a

certified rehabilitation provider." See Code §§ 54.1-3510 et

seq. (governing certification of rehabilitation providers).

Wright contends that because the record does not establish that

Ms. Raimundi was certified, he did not receive "vocational

rehabilitation services." This issue was not presented to the

commission. Therefore, we will not consider it for the first

time on appeal. Rule 5A:18. Second, Fairfax contends that it provided Wright numerous

job leads that were clearly within his physical and mental

capabilities, and that he unjustifiably refused to pursue new

employment. The commission held that Wright's failure to pursue

the job leads did not justify suspending his benefits because the

rehabilitation consultant had failed "to directly contact

employers to determine whether the claimant's physical

restrictions or illiteracy would be obstacles to his performance

of these jobs."

An employer who contends that a claimant has failed to

cooperate with job placement services bears the initial burden of

proving that the job leads provided were appropriate to the

claimant's residual capacity. Thus, where prior medical approval

is not secured for a prospective job, the employer must

demonstrate that the job "obviously" fits within the limitations

provided by the claimant's physician. See Talley v. Goodwin Brothers, 224 Va. 48, 52, 294 S.E.2d 818, 820-21 (1982).

- 6 - Consultation with a claimant's physicians, review of past

job experience and education, and consideration of the claimant's

mental and physical capabilities are all essential to securing

employment. Code § 65.2-603 seeks relief for the employer from

the payment of benefits and of the claimant's successful reentry

into the work force as a productive member of society. See

Colegrove, 228 Va. at 294, 321 S.E.2d at 656.

These twin goals are underscored by a balancing of

interests. The employer's justified desire for the claimant's

reemployment and the health, welfare and dignity of a claimant

remain equally important. Prior medical approval, detailed job

descriptions specifying the mental and physical requirements of a

position, and direct contact with prospective employers to

confirm the availability of jobs and their suitability to the

individual claimant constitute acceptable methods by which a

vocational consultant may purge inappropriate job leads. This

enables the claimant to avoid futile pursuit of unsuitable

employment and prevents lengthening of the period in which the

employer remains liable to the claimant for benefits. In this case, the vocational consultant neither obtained

medical approval for the job leads, nor contacted the prospective

employers to determine their expectations of an employee.

Moreover, she did not furnish Wright with descriptions of the job

performance requirements. While many of the positions appeared

similar to Mr. Wright's previously held job, the lack of

- 7 - meaningful information in the record regarding the physical and

mental requirements for the positions renders us unable to

conclude that the jobs were "obviously" compatible with Wright's

severe physical restrictions.

Fairfax argues that because it made job leads available to

Wright and he failed to pursue them, he must prove that his

failure to pursue the leads was justified. That analysis does

not apply here. See Ellerson v. W.O. Grubb Steel Erection Co., 1

Va. App. 97, 98, 335 S.E.2d 379, 380 (1985). An employer

contending that a claimant unjustifiably refused job placement

efforts must prove that the job leads were bona fide. Bona fide

job leads consist of available employment positions reasonably

compatible with the claimant's capacities. As we noted above, it

is not obvious that the job leads were bona fide. Thus, the

commission's findings were supported by credible evidence.

Third, Fairfax contends that Wright unjustifiably failed to

cooperate with efforts to evaluate and, if necessary, to improve

his level of education. Code § 65.2-603 rests upon a bedrock of

cooperation, and a claimant must cooperate with reasonable and

necessary efforts designed to achieve reemployment. Johnson v.

City of Clifton Forge, 9 Va. App. 376, 377, 388 S.E.2d 654, 655

(1990). Thus, concomitant with an employer's obligation to give

assistance, stands the claimant's obligation to accept it.

Ms. Raimundi testified that Wright refused to attempt

remedial education and refused to be tested to determine his

- 8 - suitability for such a remedial effort. She testified that she

suggested GED training, and that Wright told her that he was not

interested. She said she sought to have him tested to determine

his suitability for remedial education, but he refused to take

the test. Justifying his refusal, Wright said: But I told her what is the use of me going to try to do that when I know myself my capabilities . . . what I could learn and what I can't learn. I'm 43 years old, and I been in, you know, 43 years old, and I haven't learned nothing yet. And I have my sisters and stuff. They try to help me and stuff. I already been through that. It's embarrassing, but . . . .

The commission found that: At age 43, the claimant is certainly a candidate for vocational rehabilitation, and if illiteracy is an obstacle then this area should be addressed. However, we do not find that the vocational rehabilitation efforts in this case meet the Commission's criteria for suspending benefits.

Cooperation suggests working with another for a common

purpose. Conversely, a failure to cooperate necessarily implies

a refusal to work with another toward achieving the established

goal. The record establishes without question that Wright

refused to make even a minimal effort toward investigating his

suitability for remedial education and, through education,

vocational rehabilitation. Thus, the commission erred in finding

that Fairfax had failed to prove that Wright unjustifiably

refused reasonable vocational rehabilitation efforts.

The judgment of the commission is reversed, and this case is

- 9 - remanded to it for entry of an order suspending benefits so long

as Wright continues without justification to reject reasonable

vocational rehabilitation efforts.

Reversed and remanded.

- 10 -