Cecil v. Brown v. James Randolph Jenkins ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
CECIL V. BROWN
AND
STATE FARM GENERAL INSURANCE COMPANY MEMORANDUM OPINION *
PER CURIAM
v. Record No. 1595-96-2 DECEMBER 10, 1996
JAMES RANDOLPH JENKINS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Lynne Jones Blain; Michelle P. Wiltshire;
Morris & Morris, on brief), for appellants.
(Jeffrey C. Early; Berry & Early, on brief),
for appellee.
Cecil V. Brown and its insurer (hereinafter collectively
referred to as "employer") contend that the Workers' Compensation
Commission erred in (1) finding that employer failed to prove
that James R. Jenkins unjustifiably refused to cooperate with
vocational rehabilitation; and (2) not considering whether
Jenkins' misrepresentation of his physical capabilities to his
treating physician and the vocational rehabilitation counselors
established an unjustified refusal to cooperate with vocational
rehabilitation. 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.
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
I.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). So
viewed, the evidence established that Jenkins sustained a
compensable injury to his left hand on May 15, 1992, while
working as a carpenter for employer. Dr. E. William Pelton, a
neurologist, diagnosed Jenkins as suffering from reflex
sympathetic dystrophy due to nerve damage caused by the trauma of
the injury. Dr. Pelton restricted Jenkins from any work
involving his left hand. Dr. Pelton opined that Jenkins could
work an eight-hour day unless pain interfered with his sleep.
Dr. Pelton's notes revealed that Jenkins' pain disturbed his
sleep.
On April 4, 1995, when vocational counselors Irene Creger
and David Trivillino first met with Jenkins, Jenkins informed
them that his physical therapy schedule for a shoulder condition
would limit his availability to meet with them. A week later,
Jenkins met Trivillino at the Virginia Employment Commission
("VEC") and registered with the VEC. Jenkins did not visit any
prospective employers on that day because he did not feel well
and his right arm was in a sling. Jenkins also met with
Trivillino and a Veteran's Administration representative on
April 18, 1995 and April 25, 1995. On those dates, Jenkins
completed job applications.
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Jenkins missed an appointment with Trivillino on April 21,
1995. Jenkins would not give Trivillino a copy of his driving
record.
On April 28, 1995, Michael Cheney, who replaced Trivillino,
met with Jenkins. Jenkins completed an application for a
full-time job with a greenhouse, which involved placing seedlings
in pots on a conveyor belt. Jenkins indicated on the application
that he could only work four hours per day.
Jenkins went with Cheney to a Wal-Mart store on May 2, 1995,
and applied for a "greeter" position. The job required him to
greet customers who entered the store for five hours per day.
Jenkins stated that he could only perform this job four hours per
day because the job required that he stand on a hard floor.
Cheney called Jenkins on May 4, 1995, to confirm a meeting
for the next day. When Jenkins informed Cheney that he had only
a limited amount of time to meet the next day due to his physical
therapy schedule, Cheney handed the telephone to Creger, who then
hung up on Jenkins after a short conversation. Neither Cheney
nor Creger contacted Jenkins again.
After viewing a surveillance videotape depicting Jenkins'
activities, Dr. Pelton testified by deposition that Jenkins could
have performed the greeter job for five hours per day. Dr.
Pelton also stated that, based on the videotape, it appeared that
Jenkins could use his left hand for limited periods. Dr. Pelton
testified, however, that he could not determine from the
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videotape whether the activities caused pain or swelling.
Employer filed an application seeking to suspend Jenkins'
benefits based upon his unjustified refusal to cooperate with
vocational rehabilitation. Based upon Jenkins' age (65), the
distance he lived from the primary job market, and the totality
of the evidence, the commission concluded that Jenkins did not
unjustifiably refuse to cooperate with employer's vocational
rehabilitation efforts.
II.
Unless we can say as a matter of law that employer's
evidence sustained its burden of proof, the commission's findings
are binding and conclusive upon us. See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
The employer's application to terminate benefits largely required
the commission to make factual determinations. According to
well-established principles, "[m]atters of weight and
preponderance of the evidence, and the resolution of conflicting
inferences fairly deducible from the evidence, are within the
prerogative of the commission, and are conclusive and binding on
the Court of Appeals." Kim v. Sportswear, 10 Va. App. 460, 465,
393 S.E.2d 418, 421 (1990) (citations omitted).
The evidence proved that only a relatively short period of
time elapsed while employer attempted vocational rehabilitation.
The commission recognized that Jenkins expressed reservations
about the jobs, but found that his age, disconcerting physical
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therapy, travel distance, and other factors limited the time
available to conduct job searches. Furthermore, the evidence
proved that Creger's unilateral decision to cease contact with
Jenkins was not reasonable. In view of these circumstances and
the evidence of Jenkins' efforts to comply with the requests of
the vocational counselors, we cannot say as a matter of law that
employer's evidence sustained its burden of proof.
III.
Employer contends that the commission did not address its
argument that Jenkins' misrepresentation of his physical capacity
to the vocational rehabilitation counselors and to Dr. Pelton
constituted an unjustified refusal to cooperate with vocational
rehabilitation. We disagree. The commission considered whether
the greenhouse and greeter jobs fell within Jenkins'
capabilities. The commission considered the surveillance
videotape depicting Jenkins' activities and its effect, if any,
upon Dr. Pelton's opinion regarding Jenkins' physical capacity.
Indeed, the record reveals that Jenkins' physical capacity was a
disputed factual issue. Based upon this record, the commission,
in its role as fact finder, was entitled to weigh this evidence
and Dr. Pelton's opinions, and to conclude that Jenkins did not
misrepresent his physical capacity or otherwise unjustifiably
refuse to cooperate with vocational rehabilitation. For these
reasons, we affirm the commission's decision.
Affirmed.
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