Donald Eugene Umphlett v. Norfolk Ship. etc. ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
DONALD EUGENE UMPHLETT
MEMORANDUM OPINION * BY
v. Record No. 1502-95-1 JUDGE RICHARD S. BRAY
FEBRUARY 27, 1996
NORFOLK SHIPBUILDING & DRYDOCK CORPORATION
and RICHARD-FLAGSHIP SERVICES, INC.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Robert E. Walsh (Rutter & Montagna, L.L.P.,
on brief), for appellant.
William C. Walker (Bradford C. Jacob; Taylor &
Walker, P.C., on brief), for appellees.
Donald Eugene Umphlett (claimant) appeals the decision of
the Workers' Compensation Commission (commission) which
"suspended" benefits as a result of claimant's "refusal to
cooperate with vocational rehabilitation" services provided by
his employer, Norfolk Shipbuilding and Drydock Corporation
(employer). Claimant contends that his conduct was reasonable
and justified and caused no prejudice to employer. Finding no
error, we affirm the decision.
The parties are fully conversant with the record, and we
recite only those facts necessary to a disposition of this
appeal.
On appeal, we construe the evidence in the light most
favorable to the party prevailing below, employer in this
instance. Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App.
503, 504, 339 S.E.2d 916, 916 (1986). Findings of fact by the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
commission, supported by credible evidence, are binding and
conclusive on appeal. James v. Capitol Steel Const. Co., 8 Va.
App. 512, 515, 382 S.E.2d 487, 488 (1989); see Code § 65.2-706.
Incidental to his application for benefits resulting from an
occupational disease, claimant was contacted by Barbara Byers, a
"vocational rehabilitation specialist" provided by employer.
Byers "evaluated the claimant's academic and intellectual
capacities, reviewed his physical limitations, . . . and selected
potential employment which was approved by [his] treating
1
physician." However, as the commission noted, claimant refused
"to cooperate with [Byers'] rehabilitation efforts" and instead
unsuccessfully sought "retraining" through a vocational
rehabilitation program offered by the U.S. Department of Labor.
Code § 65.2-603(B) provides that
[t]he unjustified refusal of the employee to
accept . . . vocational rehabilitation
services when provided by the employer shall
bar the employee from further compensation
until such refusal ceases and no compensation
shall at any time be paid for the period of
suspension unless, in the opinion of the
Commission, the circumstances justified the
refusal.
(Emphasis added.) "[P]hrases such as 'unless in the opinion of
the Commission such refusal was justified' are provided so that
those appointed to implement the compensation laws may make
discretionary judgments that carry out the legislative intent."
DePaul Medical Center v. Brickhouse, 18 Va. App. 506, 508, 445
1
Byers testified that she was aware of "six employers with
employment opportunities within [claimant's] restrictions."
- 2 -
S.E.2d 494, 495 (1994). Here, the commission found that claimant
"unilaterally refused to follow up on the[] prospects [suggested
by Byers] and elected to pursue [other] rehabilitation efforts
. . . ." The determination that such conduct was unjustified
constituted a factual finding by the commission, supported by
credible evidence. See Chesapeake Masonry Corp. v. Wiggington,
229 Va. 227, 229-30, 327 S.E.2d 121, 122 (1985).
Accordingly, we affirm the decision.
Affirmed.
- 3 -