Robert A. Irwin v. Contemporary Woodcrafts, etc. ( 1999 )


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  •                   COURT OF APPEALS OF VIRGINIA
    Present: Judges Elder, Annunziata and Lemons
    Argued at Alexandria, Virginia
    ROBERT A. IRWIN
    MEMORANDUM OPINION* BY
    v.   Record No. 0416-99-4                 JUDGE LARRY G. ELDER
    DECEMBER 7, 1999
    CONTEMPORARY WOODCRAFTS, INC. AND
    PENNSYLVANIA MANUFACTURERS ASSOCIATION INS. CO.
    FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
    M. Joseph Pierce (Claude D. Convisser;
    Claude D. Convisser & Associates, P.C., on
    briefs), for appellant.
    (Geoffrey S. Gavett; Gavett and Datt, P.C.,
    on brief), for appellees. Appellees
    submitting on brief.
    Robert A. Irwin (claimant) appeals from the decision of the
    Workers' Compensation Commission (commission) denying his
    request to require Contemporary Woodcrafts, Inc., and
    Pennsylvania Manufacturers Association Insurance Company
    (collectively referred to as employer) to provide certain
    vocational rehabilitation benefits.   Specifically, claimant
    contends the commission erroneously (1) refused to require
    employer to pay for vocational retraining in the form of a
    two-year associate's degree in computer technology; and (2)
    ordered employer to provide a vocational evaluation.    Because
    * Pursuant to Code § 17.1-413, recodifying Code
    § 17-116.010, this opinion is not designated for publication.
    claimant has not shown that the requested vocational retraining
    is "reasonable and necessary" under Code § 65.2-603(A)(3), we
    hold the commission did not err in refusing to require employer
    to finance such an endeavor at this time.   Further, because the
    record nevertheless supports a finding that claimant is in need
    of vocational rehabilitation services and because Code
    § 65.2-603(A)(3) permits the commission to direct an employer to
    furnish such services, we affirm the commission's order that
    employer provide a vocational evaluation.
    Code § 65.2-603(A)(3) provides as follows:
    The employer shall . . . furnish or cause to
    be furnished, at the direction of the
    Commission, 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. . . . In the event a
    dispute arises, any party may request a
    hearing and seek the approval of the
    Commission for the proposed services. Such
    services shall take into account the
    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.
    The Virginia Supreme Court has defined the term "vocational" as
    used in that code section as relating to "'training in a
    specific skill or trade,'" and it has defined "rehabilitation"
    as "'the process of restoring an individual . . . to a useful
    and constructive place in society through some form of
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    vocational . . . or therapeutic retraining.'"       City of Salem v.
    Colegrove, 
    228 Va. 290
    , 294, 
    321 S.E.2d 654
    , 656 (1984) (quoting
    Low Splint Coal Co. v. Bolling, 
    224 Va. 400
    , 406 n.2, 
    297 S.E.2d 665
    , 668 n.2 (1982)).
    Vocational rehabilitation serves dual purposes:      "to
    restore the employee to gainful employment and to relieve the
    employer's burden of future compensation."    
    Id.
        Therefore, in
    determining the appropriateness of a proposed program, the court
    should consider, in addition to the factors set out in the
    statute, "'the relative costs and benefits to be derived from
    the program.'"   
    Id.
     (quoting Lancaster v. Cooper Indus., 
    387 A.2d 5
    , 9 (Me. 1978)).   What constitutes "'reasonable and
    necessary vocational rehabilitation training services'
    authorized by Code § [65.2-603], as applied to a particular
    claimant's case, . . . is a mixed question of law and fact."
    Id. at 293, 
    321 S.E.2d at 656
    .    The commission's findings of
    fact will be upheld on appeal if they are supported by credible
    evidence.   See Code § 65.2-706(A); James v. Capitol Steel
    Constr. Co., 
    8 Va. App. 512
    , 515, 
    382 S.E.2d 487
    , 488-89 (1989).
    The record supports the finding of the commission regarding
    the absence of evidence of claimant's aptitude for computer
    programming and his likelihood of success in the new vocation,
    factors to be considered under Code § 65.2-603(A)(3).      Claimant
    admitted concerns over his mathematical ability and said the
    curriculum required "some fairly intensive math to do the
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    computer sciences and engineering degree."   He also admitted to
    having some physical problems using a computer keyboard and said
    he did not want to enroll in more than nine credit hours a
    semester until he became more certain of his abilities.
    Although he testified that he had taken some vocational aptitude
    tests which indicated his ability to succeed in the program, the
    results of those tests were not available at the hearing.
    Claimant argues that the commission was required to accept
    as definitive his uncontradicted testimony that he had the
    requisite physical ability and intellectual aptitude to succeed
    as a computer programmer.   He cites the principle that "[t]he
    trier of fact must determine the weight of the testimony and the
    credibility of the witnesses, but it may not arbitrarily
    disregard uncontradicted evidence of unimpeached witnesses which
    is not inherently incredible and not inconsistent with the facts
    in the record."   Morris v. Badger Powhatan/Figgie Int'l, Inc., 
    3 Va. App. 276
    , 279, 
    348 S.E.2d 876
    , 877 (1986).
    Here, the commission did not arbitrarily reject claimant's
    testimony.   Rather, it considered the basis for claimant's
    testimony.   Claimant gave factual testimony about his
    keyboarding ability and his performance on certain aptitude
    tests.   Based on his having taken two computer courses and
    spoken with various teachers and people in the industry, he gave
    testimony regarding his physical and intellectual ability to
    complete the two- or four-year college programs and to succeed
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    as a computer programmer.   Therefore, in determining what weight
    to give claimant's testimony, the commission was entitled to
    consider the basis for that testimony.   Here the commission was
    entitled to conclude his testimony was insufficient to meet his
    burden of proof.
    The evidence also fails to establish that the associate's
    degree, standing alone, would qualify claimant for a job in
    computer programming or, even if it did, that the benefit to
    claimant and employer from such a job, financial or otherwise,
    would justify the cost to employer of claimant's completing the
    two- or four-year program under the facts of this case.
    Claimant opined that the associate's degree would qualify him
    for few if any computer-related jobs and provided no evidence,
    other than his own opinion, regarding the one position he
    identified specifically--in the school's computer lab.    He also
    provided no evidence other than his own opinion regarding his
    likelihood of finding employment in the field with a four-year
    degree.   Claimant freely admitted that his ultimate goal was to
    earn a master's degree in computer programming and obtain a job
    earning substantially more than his pre-injury wage.   Although
    "such self-improvement is highly laudable," Colegrove, 228 Va.
    at 294, 
    321 S.E.2d at 656
    , any vocational rehabilitation
    required under the statute must take into consideration the
    employee's pre-injury job and wage classification, his
    likelihood of success in his new vocation and the relative costs
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    and benefits to both claimant and employer.    Here, assuming
    claimant had the ability to complete the two- or four-year
    program, the evidence supports a finding that the benefits from
    such an education to claimant and employer are speculative at
    best.
    Based on this evidence, we cannot conclude the commission
    erred in holding that claimant failed to prove the associate's
    degree program was "reasonable and necessary" under Code
    § 65.2-603(A)(3).
    Claimant also contends that the commission lacked the
    authority to order employer to perform a vocational evaluation
    in the absence of a request from the employer for such an
    evaluation.    We disagree.   Code § 65.2-603(A)(3) specifically
    states that "[t]he employer shall . . . furnish or cause to be
    furnished, at the direction of the commission, reasonable and
    necessary vocational rehabilitation services" and that such
    services "may include vocational evaluation" and the like.      Code
    § 65.2-603(A)(3) (emphasis added); cf. United Parcel Serv. of
    America, Inc. v. Godwin, 
    14 Va. App. 764
    , 768, 
    418 S.E.2d 910
    ,
    913 (1992) (upholding commission's authority to direct employer
    to retrain employee if it could not find him employment
    comparable to his pre-injury employment).    Such authority does
    not require a request from either the employer or the claimant.
    Such an order also is reasonable under the facts of this case.
    Although claimant appears to possess marketable job skills, he
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    had been unemployed for almost two years at the time of the
    hearing before the deputy commissioner, due in part to the
    inability of claimant and employer's vocational consultant to
    agree on suitable work or retraining options for him.
    Therefore, we view the commission's order to employer to
    evaluate claimant's aptitude "specifically in the area of
    computer technology," an area in which claimant has expressed a
    strong interest, as more than appropriate under Code § 65.2-603.
    For these reasons, we hold the commission did not err (1)
    in refusing to require employer to pay claimant's community
    college tuition and expenses at this time or (2) in requiring
    employer to provide a vocational evaluation.   Therefore, we
    affirm the commission's ruling.
    Affirmed.
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