Robert Douglas Clark v. Fluor Daniels, etc.

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
ROBERT DOUGLAS CLARK
v. Record No. 1001-96-2 MEMORANDUM OPINION *
PER CURIAM
FLUOR DANIELS/FLUOR CORPORATION OCTOBER 8, 1996
AND
UNITED STATES FIDELITY AND
GUARANTY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Walter C. Whitt, Jr., on brief), for
appellant.
(Gary L. Denton; Denton & Drash, on brief),
for appellees.
Robert Douglas Clark contends that the Workers' Compensation
Commission erred in (1) failing to consider as after-discovered
evidence Dr. Hallett H. Mathews' December 18, 1995 medical report
and Dr. Harold Young's February 6, 1996 and March 6, 1996 medical
reports; (2) terminating Clark's compensation benefits on the
ground that he failed to cooperate with vocational rehabilitation
services by acting in a rude and inappropriate manner during a
May 15, 1995 job interview; and (3) finding that the duties of
the job, which was the subject of the May 15, 1995 interview,
fell within his physical restrictions. 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
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
decision. Rule 5A:27.
I.
In Williams v. People's Life Ins. Co., 19 Va. App. 530, 452
S.E.2d 881 (1995), this Court held as follows:
The four requirements which must be met
before the record will be reopened on the
basis of after-discovered evidence are that:
(1) the evidence was obtained after the
hearing; (2) it could not have been obtained
prior to the hearing through the exercise of
reasonable diligence; (3) it is not merely
cumulative, corroborative or collateral; and
(4) it is material and should produce an
opposite result before the commission.
Id. at 532, 452 S.E.2d at 883.
The commission did not consider Dr. Mathews' December 18,
1995 medical report or Dr. Young's February 6, 1996 and March 6,
1996 medical reports as after-discovered evidence. As the
proponent of this issue, Clark bore the burden of proving that
these medical reports could not have been obtained before the
September 20, 1995 hearing.
Clark suffered a compensable injury by accident to his back
on May 2, 1989. Dr. Young, a neurosurgeon, began treating Clark
in August 1991. Dr. Mathews began treating Clark in July 1995,
and recommended that Clark undergo additional surgery. Yet,
Clark offered no evidence to the commission to explain why he
could not have obtained Dr. Mathews' opinion regarding causation
and Dr. Young's opinions before the September 20, 1995 hearing.
Indeed, the record indicates that the deputy commissioner left
the record open until October 4, 1995 for either party to submit
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additional medical designations. Clark did not submit any
additional medical designations prior to October 4, 1995.
Because Clark failed to meet his burden of proving that these
medical records could not have been obtained through the exercise
of reasonable diligence, we cannot find that the commission erred
in failing to consider these medical reports as after-discovered
evidence.
II. and III.
"[W]hen an employee's conduct at a job interview is
unreasonable and calculated to prevent an actual offer of
employment, . . . such conduct is tantamount to an unjustified
refusal of employment. In such a case, compensation may be
denied assuming the job was suitable to the employee's work
capacity." Johnson v. City of Clifton Forge, 9 Va. App. 376,
378, 388 S.E.2d 654, 655 (1990) (en banc).
On appeal, we view the evidence in the light most favorable
to the prevailing party below. 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 on January 16, 1995, Dr.
Mark Ross, who performed a functional capabilities evaluation on
Clark, opined that Clark could return to full-duty work, eight
hours per day. Dr. Ross placed no restrictions on Clark's
ability to sit, stand, walk or climb stairs, other than to
indicate that Clark should be permitted to alternate sitting and
standing. Dr. Ross also noted that Clark had no difficulties
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with hand or foot movements. Dr. Ross did not place any
restrictions upon Clark's ability to drive.
Barbara Lowery, a senior rehabilitation specialist assigned
to assist Clark with vocational placement in early 1995,
testified that she scheduled a job interview for Clark with Jake
Legare, owner of Wheel Services, Inc. The job would have
required Clark to drive Social Security and Medicare patients to
and from their doctors' appointments during the daytime hours.
Lowery was present on May 15, 1995 during the interview.
She and Legare continually asked Clark to stop interrupting
Legare as he attempted to tell Clark about the job. Clark
interrupted Legare to state that although he had zero points on
his DMV record, he had obtained speeding convictions and his
insurance premiums were high. Clark also interrupted Legare to
say that he experienced back problems the previous week and that
when he woke each morning he never knew whether he would be able
to do anything that day. During the interview, Clark appeared
bored, drummed his fingers on the table, turned away from Legare,
and shuffled papers. When Legare offered the job to Clark, Clark
stated, "Well, I have to take the job by law."
Legare told Clark that the patients he would be required to
pick up lived in a lower income area of Newport News. Clark
responded that "white people don't go to those kinds of areas,"
that "those people lived there," and that he wouldn't go there.
Legare assured Lowery and Clark that he had not had any
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safety-related incidents with his drivers. When Clark started to
draw a map outlining "black areas," Legare ended the interview
and stated that it appeared that Clark did not want to have a
job. When Clark persisted by asking Legare if he had any white
drivers on his staff, Legare repeated that the interview was
over.
Lowery then gave Legare a standard follow-up interview form
to complete. As Legare completed the form, Clark went behind him
and started reading over his shoulders. Clark then began yelling
"This is a set up, you're just trying to get my benefits taken
from me. This is all planned." Lowery and Legare asked Clark to
leave the office several times. Finally, Clark stormed out of
the office and slammed the door.
Clark testified that at the beginning of the interview
Legare stated that he preferred to hire ex-military personnel
because they were reliable. Clark stated that he felt defensive
as a result of this comment, but he denied acting rude during the
interview. Clark claimed that he became angry only after Legare
called him a racist. Clark admitted that he expressed
reservations about going into certain areas of Newport News,
which he considered high crime areas. He also admitted that he
informed Legare that if he completed the follow-up interview
form, Clark's benefits would be terminated. Clark admitted
telling Legare that the interview was a "set up," and he admitted
that he became upset and left the office.
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As fact finder, the commission was entitled to accept
Lowery's testimony regarding Clark's behavior during the
interview and to reject Clark's testimony concerning the
interview. The determination of a witness' credibility is within
the fact finder's exclusive purview. Goodyear Tire & Rubber Co.
v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987).
Lowery's testimony constitutes credible evidence to support the
commission's finding that Clark's conduct during the interview
was calculated to prevent the offer of employment and amounted to
a refusal to cooperate with vocational rehabilitation services.
Dr. Ross' opinions constitute credible evidence to support the
commission's finding that the driver's job fell within Clark's
restrictions. "The fact that there is contrary evidence in the
record is of no consequence if there is credible evidence to
support the commission's finding." Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
For the reasons stated, we affirm the commission's decision.
Affirmed.
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