James v. Capitol Steel Const. Co.

• Decision Date: 08 August 1989
• Docket Number: No. 0924-88-2,0924-88-2
• Citation: 8 Va.App. 512,382 S.E.2d 487
• Parties: Edgar JAMES v. CAPITOL STEEL CONSTRUCTION CO. and Manufacturers Alliance Insurance Company. Record
• Court: Virginia Court of Appeals

Page 487

382 S.E.2d 487

8 Va.App. 512

Edgar JAMES v. CAPITOL STEEL CONSTRUCTION CO. and Manufacturers Alliance Insurance Company.

Record No. 0924-88-2.

Court of Appeals of Virginia.

Aug. 8, 1989.

Susan E. Cummins (Ashcraft & Gerel, on brief), for appellant.

Mary Louise Kramer (Lynn Murphy Tucker, Sands, Anderson, Marks & Miller, on brief), for appellee.

Present BARROW, BENTON and KEENAN, JJ.

BENTON, Judge.

Edgar James raises two issues in this appeal: (1) whether the Industrial Commission erred in finding that he unjustifiably refused to cooperate with rehabilitation efforts pursuant to Code §§ 65.1-63 and 65.1-88; and (2) whether his statement at the commission hearing that he would cooperate was sufficient to cure the refusal to cooperate. Finding no error, we affirm the decision of the commission.

I.

James' employment as an ironworker with Capitol Steel commenced August 14, 1984. Two months later, James suffered a compensable injury to the left knee during a slip and fall incident. He was awarded temporary total disability benefits. In 1986, Dr. William Fortune, James' treating physician for the knee injury, informed Capitol Steel's insurance carrier that James' knee injury left him partially disabled, and, as a result, James would not be able to return to his regular employment. Dr. Fortune recommended that James begin vocational rehabilitation pursuing light work options. In a "Work Capabilities Assessment" report that was sent to Rehabilitative Services and Vocational Placement, Inc., Dr. Fortune indicated that James was capable of only sedentary work which did not require heavy lifting.

In addition to the compensable knee injury, James also suffers from other unrelated ailments which pre-date both his industrial accident and his employment with Capitol Steel. As a result of a laryngectomy in 1976, James speaks with difficulty through a small opening in his throat. A medical report which was submitted to the commission stated that James "has to be very careful in that he free breathes and this is a common source of infection for him. He therefor [sic] cannot be around a lot of people...." James also suffers from hypertension, which he has had since 1974.

Delores Margeson, a rehabilitation counselor, met with James on June 17, 1987. Her notes from this first meeting reveal that James informed her that he was receiving Social Security Disability benefits and that he was "officially retired." Margeson offered James job applications for a position at the V.A. Hospital and for the food service contractor at the National Rehabilitation Hospital. James refused to accept the applications and made it clear that he was not planning to work. He also failed to attend any subsequently scheduled meetings and eventually ceased all communication with Margeson.

Capitol Steel filed an application with the Industrial Commission requesting suspension of James' compensation benefits due to his refusal to cooperate with rehabilitation efforts as required by Code § 65.1-88. At a hearing held before the deputy commissioner, James testified that the rehabilitation specialist had failed to consider all of his ailments in seeking suitable work for him. In response to inquiries whether he had informed Margeson of his other physical disabilities, James testified, "Nobody would listen to me. Last time she talked to me I told her I was retired." After reviewing the evidence, the deputy commissioner found that James "is poorly motivated to return to work and is apparently little-interested in securing even sedentary work suitable to his condition." Payment of compensation was suspended until James cured his refusal to cooperate. On review, the full commission affirmed the decision and also found that James' offer at the hearing to cooperate with rehabilitation efforts was not sufficient to cure his refusal.

II.

Factual findings of the Industrial Commission will be upheld on appeal if supported by credible evidence. Ivey v. Puckett Constr. Co., 230 Va. 486, 488, 338 S.E.2d 640, 641 (1986). To support a finding of refusal of selective employment "the record must disclose (1) a bona fide job offer suitable to the employee's capacity; (2) [a job offer that was] procured for the employee by the employer; and (3) an unjustified refusal by the employee to accept the job." Ellerson v. W.O. Grubb Steel Erection Co., 1 Va.App. 97, 98, 335 S.E.2d 379, 380 (1985); see also Code § 65.1-63; Johnson v. City of Clifton Forge, 7 Va.App. 538, 545, 375 S.E.2d 540, 544-45 (1989). Moreover, an employee's unjustified refusal to cooperate with placement efforts of the employer is tantamount to an unjustified refusal of selective employment under Code § 65.1-63. Johnson, 7 Va.App. at 547, 375 S.E.2d at 546.

James argues that he was under no obligation to cooperate with Margeson and that in view of his preexisting ailments, his refusal to do so was justified because the rehabilitation efforts were not within his residual capacity. The commission specifically held that American Furniture Co. v. Doane, 230 Va. 39, 334 S.E.2d 548 (1985), precluded consideration of James' other physical limitations in assessing whether his refusal to cooperate was unjustified. We do not read Doane to be as sweeping in its application as does the commission. In Doane, the claimant suffered an injury which was unrelated to employment and which occurred after claimant was disabled and unemployed. Due to that injury, the claimant argued that the selective employment was unsuitable. The Supreme Court held that "[a]n employer ... is absolved of liability for compensation if the employee refuses selective employment because of a physical condition unrelated to the original industrial accident and arising since the accident." Doane, 230 Va. at 43, 334 S.E.2d at 550 (emphasis added). In this case, however, the circumstance relied upon to advance the claim that the job was unsuitable was a condition which pre-existed both the compensable injury by accident and James' employment with Capitol Steel. Neither the explicit language of Doane nor the beneficent purpose of the act, see Burlington Mills Corp. v. Hagood, 177 Va. 204, 211, 13 S.E.2d 291, 293 (1941), compels the conclusion that employment suitable to the employee's residual capacity does not require consideration of a condition which pre-existed the injury by accident and which was obvious to the employer when the employee was hired.

"[E]mployment 'suitable to [the employee's] capacity' means employment within the employee's residual capacity resulting from the industrial accident." Doane, 230 Va. at 42, 334 S.E.2d at 550. Obviously, a component of the determination of residual capacity is the characteristic of the employee prior to the injury by accident. "Under the Virginia Workmen's Compensation Law, the employer takes the employee as he is...." McDaniel v. Colonial Mechanical Corp., 3 Va.App. 408, 414, 350 S.E.2d 225, 228 (1986) (quoting Hawkins v. Lane, 49 O.I.C. 144, 147 (1967)). Having employed James with his obvious, preexisting condition which causes him to speak with difficulty through a small opening in his throat, the employer cannot now be heard to claim that James' condition is not to be considered...