Washington Metro. Area Transit Authority v. McNeil ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
WASHINGTON METROPOLITAN AREA
TRANSIT AUTHORITY
MEMORANDUM OPINION *
v. Record No. 1251-97-4 PER CURIAM
OCTOBER 7, 1997
VERNON X. McNEIL
FROM THE VIRGINIA
WORKERS' COMPENSATION COMMISSION
(Robert C. Baker, Jr.; Mell, Brownell &
Baker, on brief), for appellant.
(William S. Sands, Jr.; Bruce M. Bender;
Duncan & Hopkins; Van Grack, Axelson &
Williamowsky, on brief), for appellee.
Washington Metropolitan Area Transit Authority (employer)
contends that the Workers' Compensation Commission (commission)
erred in finding that employer failed to prove that Vernon X.
McNeil (claimant): (1) unjustifiably refused to cooperate with
vocational rehabilitation; and (2) sabotaged three job
interviews. Upon reviewing the record and the briefs of the
parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. Rule
5A:27.
In order to obtain relief pursuant to Code § 65.2-603(B),
employer bore the initial burden of proving that the job leads it
provided to claimant were appropriate to claimant's residual work
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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).
In denying employer's application, the commission found as
follows:
[Gabriel] Hubbard, [who began working with
and conducting a job search for claimant in
December 1995,] testified that she made
preliminary calls to the employers selected
for interviews to insure that the residual
capacity of the claimant satisfied the
potential employer's work requirements. We
find that testimony was not persuasive, nor
was it credible. The totality of Hubbard's
testimony shows that she did not make that
effort, because she could not identify at the
evidentiary hearing the particulars of the
job duties for any position, but had only a
general idea of the work requirements that
could have been discerned from the job title
alone. Significantly, Hubbard testified that
she learned only at the interview with
Brown's Nissan that the position was
mistakenly advertised a second time and that
the position had been filled. If she had
contacted the employer after the first
advertisement had run, there would be no
reason to testify about a second
advertisement. Because she would have
learned, if she had prescreened the job
requirements with the employer after the
second advertisement had run, that there was
no available position, we conclude that she
made no such preliminary screening. We find
that her testimony showing unfamiliarity with
the specific duties of the jobs to which she
directed the claimant impeaches her testimony
as to prescreening.
It is well settled that credibility determinations are
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within the fact finder's exclusive purview. See Goodyear Tire &
Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437
(1987). Based upon Hubbard's inability to recall the specific
job requirements of the prospective jobs, the commission was
entitled to reject her testimony that she prescreened the jobs to
insure that they were compatible with claimant's residual
capacity. Absent evidence of medical approval for the job leads
or that the prospective job requirements "obviously" fit within
claimant's residual capacity, we cannot find as a matter of law
that employer's evidence sustained its burden of proving that
claimant unjustifiably refused vocational rehabilitation
services.
Because our holding on the first question presented by
employer disposes of this appeal, we need not separately address
employer's second question presented.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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