Norfolk Shipbuilding, etc v. James J McCleary

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Hodges
Argued at Chesapeake, Virginia
NORFOLK SHIPBUILDING &
DRY DOCK CORPORATION
MEMORANDUM OPINION* BY
v. Record No. 0428-02-1 JUDGE LARRY G. ELDER
OCTOBER 1, 2002
JAMES J. McCLEARY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Amanda R. Castel (Taylor & Walker, P.C., on
briefs), for appellant.
Chandra Wilson Stepney (Robert J. MacBeth,
Jr.; Rutter, Walsh, Mills & Rutter, on
brief), for appellee.
Norfolk Shipbuilding & Dry Dock Corporation (employer)
appeals from a decision of the Workers' Compensation Commission
(the commission) awarding temporary total disability benefits to
James J. McCleary (claimant). On appeal, employer contends the
commission erroneously accepted claimant's late-filed written
statement of September 7, 2001. It also argues that the
commission's award of temporary total disability benefits to
claimant for the period of time he participated in vocational
rehabilitation sponsored by the Office of Workers' Compensation
Programs (OWCP) of the United States Department of Labor
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
constituted an erroneous ruling that this participation, as a
matter of law, satisfied claimant's duty to market his residual
work capacity under the Virginia Workers' Compensation Act (the
VWCA). 1
We hold the time of filing of the written statement that
employer challenges is irrelevant in this appeal because that
statement pertained only to claimant's cross-appeal to the
commission, not a part of the appeal before this Court.
Further, we hold credible evidence supported a finding that
claimant adequately marketed his residual capacity during the
disputed periods of time through May 10, 2000. Thus, we affirm
the commission's award of benefits for these periods. 2
I.
CLAIMANT'S LATE-FILED WRITTEN STATEMENT
Following the deputy commissioner's award of benefits for
the disputed periods of time prior to May 10, 2000, and denying
benefits from May 10, 2000 forward, both parties filed
independent requests for review. Employer requested review of
1
Although claimant originally sought to reframe the issue
as whether he unreasonably refused employer's offer of
vocational rehabilitation, the parties agreed at oral argument
that the sole issue before us on appeal is whether claimant
adequately marketed his residual capacity for all periods up to
May 10, 2000, when he was partially disabled. Thus, on the
merits of this appeal, we consider only the marketing issue.
2
Claimant originally sought benefits continuing after May
10, 2000, but the deputy commissioner and commission denied this
claim, and claimant does not contest that denial on appeal to
this Court.
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the deputy's decision awarding benefits for the period prior to
May 10, 2000, and claimant requested review of the deputy's
denial of benefits from May 10, 2000 forward. Employer's
written statement in support of its request for review, sent by
certified mail, was dated August 29, 2001, and claimant's reply
to employer's written statement, also sent by certified mail,
was dated September 10, 2001.
Employer does not contest the timeliness of claimant's
filing of his September 10, 2001 reply to employer's written
statement. Rather, he contests the timeliness of claimant's
document dated September 7, 2001. The challenged document
purports to be "claimant's Written Statement in regards to
Employer's request for review of . . . Deputy Commissioner
Wilder's April 30, 2001 Opinion . . . ." (Emphasis added).
However, a review of the text of that document makes clear that
it contains argument only on the subject of claimant's
independent request for review of the deputy's decision and does
not respond to any arguments contained in employer's written
statement.
Because claimant did not appeal to this Court the
commission's ruling denying benefits from May 10, 2000 forward,
the issue of the timeliness of claimant's filing of his
independent written statement dated September 7, 2001 is not
before us on appeal. Thus, we dismiss this portion of
employer's appeal.
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II.
CLAIMANT'S DUTY TO MARKET HIS RESIDUAL CAPACITY
"Where an employee's disability is partial, to establish
his entitlement to benefits, he must prove that he made a
reasonable effort to market his residual work capacity." Wall
Street Deli, Inc. v. O'Brien, 32 Va. App. 217, 220, 527 S.E.2d
451, 453 (2000). In determining whether the employee has met
his burden of proof, the commission should consider the
following:
(1) the nature and extent of [the]
employee's disability; (2) the employee's
training, age, experience, and education;
(3) the nature and extent of [the]
employee's job search; (4) the employee's
intent in conducting his job search; (5) the
availability of jobs in the area suitable
for the employee, considering his
disability; and (6) any other matter
affecting [the] employee's capacity to find
suitable employment.
Nat'l Linen Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d
31, 34 (1989) (footnotes omitted). Other matters affecting the
employee's ability to find suitable employment include whether
"the employer availed itself of its opportunity to assist the
claimant in obtaining employment" and, if so, "whether the
[claimant] cooperated" with those efforts. Id. at 272 n.5, 380
S.E.2d at 34 n.5; see also Code § 65.2-603(A)(3), (B) (stating
that employer may offer vocational rehabilitation services,
independently or at direction of commission and that employee's
"unjustified refusal" of such services justifies suspension of
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benefits). The commission also may consider "whether [the
employee] is capable of being retrained." McGuinn, 8 Va. App.
at 272 n.5, 380 S.E.2d at 34 n.5.
Ultimately, "[t]he commission . . . determines which of
these or other factors are more or less significant with regard
to a particular case," id. at 273, 380 S.E.2d at 34-35, and
"[w]hat constitutes a reasonable marketing effort depends on the
facts and circumstances of each case," Greif Cos. v. Sipe, 16
Va. App. 709, 715, 434 S.E.2d 314, 318 (1993). The decision of
the commission "on [this] question, if supported by credible
evidence, will not be disturbed on appeal." O'Brien, 32
Va. App. at 220-21, 527 S.E.2d at 453.
Here, employer contends the commission found, as a matter
of law, that claimant's participation in the OWCP vocational
rehabilitation program constituted adequate marketing of
claimant's residual capacity and that this finding was
erroneous. We disagree.
First, the commission did not hold that any claimant's
participation in OWCP-sponsored vocational rehabilitation
satisfies that claimant's duty to market his residual capacity
under the VWCA as a matter of law. It merely affirmed the
deputy's ruling that this "claimant's involvement with the
vocational rehabilitation program offered by the Department of
Labor under the Federal [LHWCA] met his obligations under the
[VWCA] until May 10, 2000." (Emphases added).
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Second, credible evidence in the record supported that
finding. Claimant was released to work with restrictions in
April 1998. That same month, OWCP informed claimant that he was
a candidate for OWCP's vocational rehabilitation services, and
it referred him to Vocational Counselor George Davis. During
May and June 1998, Davis performed vocational counseling and
testing, reviewed information regarding claimant's medical
status, and performed a labor market survey to identify
available positions in the local labor market which were
suitable for claimant's abilities. Although claimant had a high
school education, an above average I.Q., and thirty years
combined experience as an electrician for the Navy and employer,
he was 50 years old and had no other transferable skills. Davis
noted that "very few positions meet [claimant's] work
restrictions" and that "most positions [he] is physically able
to perform, such as clerical, counseling or computer, will
require additional skills." Despite these limitations, Davis
helped claimant prepare a resume and cover letter, target and
apply for suitable jobs, and evaluate various opportunities for
retraining in related fields.
Davis's efforts on claimant's behalf were hindered when
claimant underwent surgery shortly after vocational
rehabilitation efforts began and remained disabled for a period
of time afterward. After claimant recuperated, employer laid
claimant off, and Davis focused his efforts on obtaining
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employment for claimant with another employer. When claimant's
condition improved significantly, he was able to return to work
for employer with only limited restrictions, but his condition
worsened, and he was unable to maintain that employment.
Thereafter, Davis helped claimant investigate the
possibility of utilizing his electrical skills for retraining in
the heating and air conditioning field. Claimant had planned to
enroll in Tidewater Community College to achieve this goal, but
his treating physician concluded work in that field would be too
strenuous for him. When Davis remained unable to locate
employment for claimant for several more months, they arranged
for claimant to enter a computer training program in "Microsoft
Engineering" which was designed to lead to sedentary employment.
Claimant met the minimal requirements for that training program
until the Spring of 2000, when he failed to take a test
necessary to allow him to progress to the next phase of the
program. Shortly thereafter, on May 10, 2000, OWCP terminated
his participation in its vocational rehabilitation program based
on his non-cooperation.
Davis prepared detailed reports documenting his job search
efforts on claimant's behalf, and he ceased his
placement/retraining efforts on only three occasions--when
claimant had surgery and was temporarily and totally disabled,
when claimant returned to work for employer at his pre-injury
wage, and when claimant entered the training program in
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Microsoft Engineering which was expected to lead to claimant's
finding appropriate employment.
Although no evidence established that claimant sought
employment on his own, Davis, a trained vocational counselor
approved by OWCP, sought employment on claimant's behalf. The
commission was free to conclude that Davis's efforts to obtain
retraining and locate employment for claimant could be
attributed to claimant for purposes of evaluating claimant's
marketing efforts and that, if Davis could not locate
appropriate employment for claimant before claimant completed
the Microsoft training program, claimant was unlikely to obtain
such employment on his own.
Further, the record supported findings (1) that Davis's
efforts were appropriate in light of claimant's disability,
training and experience, and the local job market, cf. Va. Int'l
Terminals, Inc. v. Moore, 22 Va. App. 396, 401-02, 470 S.E.2d
574, 577 (1996) (holding credible evidence supported
commission's finding that job search efforts were reasonable
where "claimant's list of employers . . . [was] not an extensive
record for marketing efforts" but commission observed that
claimant "[could] read and write at only a second or third grade
level"), aff'd on other grounds, 254 Va. 46, 486 S.E.2d 528
(1997), and (2) that claimant participated in Davis's efforts in
good faith during all disputed periods through May 10, 2000,
when he was terminated from the OWCP program. Thus, credible
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evidence supported a finding that claimant's good-faith
participation in Davis's appropriate placement efforts proved
adequate marketing of claimant's residual capacity.
Finally, the commission expressly found that claimant's
refusal to cooperate with employer's vocational rehabilitation
services prior to May 10, 2000--a component of the marketing
issue--was not unjustified. McGuinn, 8 Va. App. at 272 n.5, 380
S.E.2d at 34 n.5 (noting that as part of determining whether
employee marketed his residual capacity, commission should
consider whether employee cooperated with employer's efforts to
assist employee in obtaining employment). When employer's
vocational counselor first contacted claimant in June 1998,
claimant had already begun vocational testing and counseling
with George Davis, an OWCP counselor. As outlined above, the
evidence also supported a finding that Davis engaged in ongoing
efforts to obtain retraining and locate employment suitable to
claimant's skills and abilities and that claimant cooperated
with Davis's efforts until shortly before claimant was
terminated from the OWCP program in May 2000. Thus, the
evidence supported the commission's finding that claimant's
refusal to cooperate with employer's vocational counselor was
not unjustified. Cf. Metro Mach. Corp. v. Sowers, 33 Va. App.
197, 208, 532 S.E.2d 341, 346-47 (2000) (holding credible
evidence supported commission's conclusion that employee's
refusal to cooperate with employer's vocational rehabilitation
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was justified where employee "was actively participating with
the Virginia Employment Commission's vocational rehabilitation
and seeking appropriate employment").
We do not view the commission's holding as a determination
that every claimant who participates in vocational
rehabilitation through OWCP or any similar program satisfies his
duty to market under the VWCA as a matter of law. As discussed
above, "[w]hat constitutes a reasonable marketing effort depends
on the facts and circumstances of each case." Sipe, 16 Va. App.
at 715, 434 S.E.2d at 318. Nor do we view the commission's
holding as a determination that every claimant who participates
in vocational rehabilitation through OWCP or any similar program
but declines vocational rehabilitation offered by his or her
employer under the VWCA is justified, as a matter of law, in
doing so. Rather, it is within the discretion of the commission
to determine in each particular case whether "the circumstances
justified the refusal." Code § 65.2-603(B); see McGuinn, 8 Va.
App. at 272 n.5, 380 S.E.2d at 34 n.5.
For these reasons, we hold credible evidence supports the
commission's finding that claimant "met his obligations under
the [VWCA] until May 10, 2000."
III.
We dismiss employer's appeal insofar as it claims the
commission erroneously accepted claimant's submission of
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September 7, 2001, and we affirm the award of benefits for the
disputed dates up to May 10, 2000.
Dismissed in part,
and award affirmed.
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