Fluor Corporation v. Joel W. Beasley ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Agee
Argued at Chesapeake, Virginia
FLUOR CORPORATION AND
CONTINENTAL CASUALTY COMPANY
MEMORANDUM OPINION * BY
v. Record No. 1383-01-1 JUDGE G. STEVEN AGEE
DECEMBER 4, 2001
JOEL W. BEASLEY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Fay F. Spence (Richard E. Garriott, Jr.;
Clarke, Dolph, Rapaport, Hardy & Hull,
P.L.C., on brief), for appellants.
B. Mayes Marks, Jr. (Marks and Williams,
P.C., on brief), for appellee.
Fluor Corporation and its insurer, Continental Casualty
Company, (collectively "the employer") appeal an order of the
Workers' Compensation Commission ("the commission") rejecting
the employer's application for a hearing based upon a change in
condition and to suspend benefits previously awarded to Joel W.
Beasley ("the claimant"). The employer contends the commission
erred when it concluded that the supporting documentation filed
with the employer's application failed to establish probable
cause to believe the employer's claims were meritorious. For
the reasons that follow, we affirm.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, only those facts necessary to a disposition of this
appeal are recited.
On appeal, the employer argues that the commission erred
when it concluded that the employer's application and evidence
were insufficient to establish probable cause that a change in
condition had occurred and that the relief sought was
meritorious. 1 We disagree and affirm the decision of the
commission.
1
Upon receipt of the employer's application, a senior
claims examiner for the commission declined to docket the matter
for hearing for the following reasons:
A thorough review of the evidence leads us
to conclude that the employee was justified
in refusing to participate in the
telephone/telemarketing course offered by
the employer. For obvious reasons, it would
not appear appropriate to require a person
with a back injury to drive over one hour
each way to attend an all-day workshop in
which the employee would be required to sit
for the duration of the training. More
importantly, Section 65.2-603, Code of
Virginia, provides that vocational
rehabilitation services "shall take into
account the employee's pre-injury job and
wage classifications, his age, aptitude, and
level of education." This employee is an
experienced crane operator, who, at 60 years
of age, was earning an average weekly wage
of $1,224.00. This employee's background as
it relates to employment and training in
telemarketing, is not consistent with the
requirements set forth in Section 65.2-603,
Code of Virginia.
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This appeal involves the application of the commission's
pre-hearing procedural rules to the facts of this case. To
carry out the provisions of the Workers' Compensation Act, the
commission has the power to make and enforce rules not
inconsistent with the Act. See Code § 65.2-201. When a
challenge is made to the commission's construction of its rules,
"our review is limited to a determination whether the
commission's interpretation of its own rule was reasonable."
Classic Floors, Inc. v. Guy, 9 Va. App. 90, 93, 383 S.E.2d 761,
763 (1989).
Under Commission Rule 1.4, an employer's application for
hearing based upon a change in condition must be in writing and
under oath and must state the grounds for relief and the date
for which compensation was last paid. In addition, the employer
must designate and send to the claimant copies of the
. . . Inasmuch as the employee has no
previous experience in this area of training
and for the reasons stated above, we cannot
find that this employee has unjustifiably
failed to cooperate with vocational
rehabilitation efforts. . . .
Under the circumstances, we decline to find
probable cause which would justify a
suspension of compensation benefits and
require this matter to be scheduled for a
hearing.
This decision was upheld on review by the full commission, which
added "we find that it is not reasonable to expect that a man
with this background would be easily trained in computer skills
and telemarketing."
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documentation supporting its application. See Commission Rule
1.4(A). Under Commission Rule 1.5, the commission is required
to review the employer's application for compliance with the
Workers' Compensation Act and the commission's rules. At this
preliminary stage, whether an employer is entitled to a
suspension of benefits and to a hearing on the merits of its
application hinge upon whether its application is "technically
acceptable." See Commission Rule 1.5(C).
If the commission deems the application to be lacking in
probable cause, the application will be deemed "technically
unacceptable" and a hearing will not be scheduled. The
commission has defined the "probable cause" standard as "'[a]
reasonable ground for belief in the existence of facts
warranting the proceeding complained of.'" Circuit City Stores,
Inc. v. Scotece, 28 Va. App. 383, 387, 504 S.E.2d 881, 883
(1998) (citation omitted). We have upheld this test and its
standard. See id.
Applying these rules and the probable cause standard to
this case, we hold that the commission did not err when it
affirmed the claims examiner's conclusion that the supporting
documentation designated by the employer was insufficient to
support a finding of probable cause to warrant the relief
sought.
An employer who contends that a claimant has failed to
cooperate with job placement services bears the initial burden
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of proving that the vocational training offered was appropriate
to the claimant's capacity. See Code § 65.2-603(A)(3). There
is nothing in the employer's supporting documentation to suggest
the employer can meet this burden. The employer does not
provide in its documentation an offer of proof that the
vocational training would be appropriate for the claimant.
Rather, it only provided the commission with the fact that a
customer service training program was offered to the claimant
and he refused on the basis that it was inappropriate for him.
Therefore, we cannot conclude that the commission's
interpretation of its rules to find a lack of probable cause was
unreasonable.
Accordingly, we affirm the decision of the commission.
Affirmed.
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