Robert A. Irwin v. Contemporary Woodcrafts, etc.

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Lemons
Argued at Alexandria, Virginia
ROBERT A. IRWIN
MEMORANDUM OPINION* BY
v. Record No. 0416-99-4 JUDGE LARRY G. ELDER
DECEMBER 7, 1999
CONTEMPORARY WOODCRAFTS, INC. AND
PENNSYLVANIA MANUFACTURERS ASSOCIATION INS. CO.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
M. Joseph Pierce (Claude D. Convisser;
Claude D. Convisser & Associates, P.C., on
briefs), for appellant.
(Geoffrey S. Gavett; Gavett and Datt, P.C.,
on brief), for appellees. Appellees
submitting on brief.
Robert A. Irwin (claimant) appeals from the decision of the
Workers' Compensation Commission (commission) denying his
request to require Contemporary Woodcrafts, Inc., and
Pennsylvania Manufacturers Association Insurance Company
(collectively referred to as employer) to provide certain
vocational rehabilitation benefits. Specifically, claimant
contends the commission erroneously (1) refused to require
employer to pay for vocational retraining in the form of a
two-year associate's degree in computer technology; and (2)
ordered employer to provide a vocational evaluation. Because
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
claimant has not shown that the requested vocational retraining
is "reasonable and necessary" under Code § 65.2-603(A)(3), we
hold the commission did not err in refusing to require employer
to finance such an endeavor at this time. Further, because the
record nevertheless supports a finding that claimant is in need
of vocational rehabilitation services and because Code
§ 65.2-603(A)(3) permits the commission to direct an employer to
furnish such services, we affirm the commission's order that
employer provide a vocational evaluation.
Code § 65.2-603(A)(3) provides as follows:
The employer shall . . . furnish or cause to
be furnished, at the direction of the
Commission, 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. . . . In the event a
dispute arises, any party may request a
hearing and seek the approval of the
Commission for the proposed services. Such
services shall take into account the
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.
The Virginia Supreme Court has defined the term "vocational" as
used in that code section as relating to "'training in a
specific skill or trade,'" and it has defined "rehabilitation"
as "'the process of restoring an individual . . . to a useful
and constructive place in society through some form of
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vocational . . . or therapeutic retraining.'" City of Salem v.
Colegrove, 228 Va. 290, 294, 321 S.E.2d 654, 656 (1984) (quoting
Low Splint Coal Co. v. Bolling, 224 Va. 400, 406 n.2, 297 S.E.2d
665, 668 n.2 (1982)).
Vocational rehabilitation serves dual purposes: "to
restore the employee to gainful employment and to relieve the
employer's burden of future compensation." Id. Therefore, in
determining the appropriateness of a proposed program, the court
should consider, in addition to the factors set out in the
statute, "'the relative costs and benefits to be derived from
the program.'" Id. (quoting Lancaster v. Cooper Indus., 387
A.2d 5, 9 (Me. 1978)). What constitutes "'reasonable and
necessary vocational rehabilitation training services'
authorized by Code § [65.2-603], as applied to a particular
claimant's case, . . . is a mixed question of law and fact."
Id. at 293, 321 S.E.2d at 656. The commission's findings of
fact will be upheld on appeal if they are supported by credible
evidence. See Code § 65.2-706(A); James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488-89 (1989).
The record supports the finding of the commission regarding
the absence of evidence of claimant's aptitude for computer
programming and his likelihood of success in the new vocation,
factors to be considered under Code § 65.2-603(A)(3). Claimant
admitted concerns over his mathematical ability and said the
curriculum required "some fairly intensive math to do the
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computer sciences and engineering degree." He also admitted to
having some physical problems using a computer keyboard and said
he did not want to enroll in more than nine credit hours a
semester until he became more certain of his abilities.
Although he testified that he had taken some vocational aptitude
tests which indicated his ability to succeed in the program, the
results of those tests were not available at the hearing.
Claimant argues that the commission was required to accept
as definitive his uncontradicted testimony that he had the
requisite physical ability and intellectual aptitude to succeed
as a computer programmer. He cites the principle that "[t]he
trier of fact must determine the weight of the testimony and the
credibility of the witnesses, but it may not arbitrarily
disregard uncontradicted evidence of unimpeached witnesses which
is not inherently incredible and not inconsistent with the facts
in the record." Morris v. Badger Powhatan/Figgie Int'l, Inc., 3
Va. App. 276, 279, 348 S.E.2d 876, 877 (1986).
Here, the commission did not arbitrarily reject claimant's
testimony. Rather, it considered the basis for claimant's
testimony. Claimant gave factual testimony about his
keyboarding ability and his performance on certain aptitude
tests. Based on his having taken two computer courses and
spoken with various teachers and people in the industry, he gave
testimony regarding his physical and intellectual ability to
complete the two- or four-year college programs and to succeed
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as a computer programmer. Therefore, in determining what weight
to give claimant's testimony, the commission was entitled to
consider the basis for that testimony. Here the commission was
entitled to conclude his testimony was insufficient to meet his
burden of proof.
The evidence also fails to establish that the associate's
degree, standing alone, would qualify claimant for a job in
computer programming or, even if it did, that the benefit to
claimant and employer from such a job, financial or otherwise,
would justify the cost to employer of claimant's completing the
two- or four-year program under the facts of this case.
Claimant opined that the associate's degree would qualify him
for few if any computer-related jobs and provided no evidence,
other than his own opinion, regarding the one position he
identified specifically--in the school's computer lab. He also
provided no evidence other than his own opinion regarding his
likelihood of finding employment in the field with a four-year
degree. Claimant freely admitted that his ultimate goal was to
earn a master's degree in computer programming and obtain a job
earning substantially more than his pre-injury wage. Although
"such self-improvement is highly laudable," Colegrove, 228 Va.
at 294, 321 S.E.2d at 656, any vocational rehabilitation
required under the statute must take into consideration the
employee's pre-injury job and wage classification, his
likelihood of success in his new vocation and the relative costs
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and benefits to both claimant and employer. Here, assuming
claimant had the ability to complete the two- or four-year
program, the evidence supports a finding that the benefits from
such an education to claimant and employer are speculative at
best.
Based on this evidence, we cannot conclude the commission
erred in holding that claimant failed to prove the associate's
degree program was "reasonable and necessary" under Code
§ 65.2-603(A)(3).
Claimant also contends that the commission lacked the
authority to order employer to perform a vocational evaluation
in the absence of a request from the employer for such an
evaluation. We disagree. Code § 65.2-603(A)(3) specifically
states that "[t]he employer shall . . . furnish or cause to be
furnished, at the direction of the commission, reasonable and
necessary vocational rehabilitation services" and that such
services "may include vocational evaluation" and the like. Code
§ 65.2-603(A)(3) (emphasis added); cf. United Parcel Serv. of
America, Inc. v. Godwin, 14 Va. App. 764, 768, 418 S.E.2d 910,
913 (1992) (upholding commission's authority to direct employer
to retrain employee if it could not find him employment
comparable to his pre-injury employment). Such authority does
not require a request from either the employer or the claimant.
Such an order also is reasonable under the facts of this case.
Although claimant appears to possess marketable job skills, he
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had been unemployed for almost two years at the time of the
hearing before the deputy commissioner, due in part to the
inability of claimant and employer's vocational consultant to
agree on suitable work or retraining options for him.
Therefore, we view the commission's order to employer to
evaluate claimant's aptitude "specifically in the area of
computer technology," an area in which claimant has expressed a
strong interest, as more than appropriate under Code § 65.2-603.
For these reasons, we hold the commission did not err (1)
in refusing to require employer to pay claimant's community
college tuition and expenses at this time or (2) in requiring
employer to provide a vocational evaluation. Therefore, we
affirm the commission's ruling.
Affirmed.
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