Fairfax Co. School Board v. Lonnie M. Wright ( 1997 )

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
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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
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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.
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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
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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).
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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
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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
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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
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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.
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