Transfer v. Dicks

• Decision Date: 14 June 1985
• Docket Number: 841037 and 841046,Nos. 840975,s. 840975
• Citation: 229 Va. 548,331 S.E.2d 449
• Parties: Chavis TRANSFER, et al. v. Hopkins DICKS, Jr. RUST ENGINEERING COMPANY, et al. v. Dwight E. SHELTON Dwight E. SHELTON v. RUST ENGINEERING COMPANY, et al. Record
• Court: Virginia Supreme Court

Page 449

331 S.E.2d 449

229 Va. 548

Chavis TRANSFER, et al. v. Hopkins DICKS, Jr.

RUST ENGINEERING COMPANY, et al. v. Dwight E. SHELTON

Dwight E. SHELTON v. RUST ENGINEERING COMPANY, et al.

Record Nos. 840975, 841037 and 841046.

Supreme Court of Virginia.

June 14, 1985.

Richard Cullen, Richmond, (McGuire, Woods & Battle, Richmond, on briefs), for Chavis Transfer.

Gerald G. Lutkenhaus, Richmond (Central Virginia Legal Aid Society, Inc., on brief), for Hopkins Dicks, Jr.

John M. Oakey, Jr., Richmond (McGuire, Woods & Battle, Richmond, on briefs), for Rust Engineering Co.

P. Dawn Bishop, Richmond, for Dwight E. Shelton.

Present: All the Justices.

COMPTON, Justice.

In this opinion, we discuss three workers' compensation appeals resulting from separate industrial accidents involving two different claimants. The issues stem from the Industrial Commission's application of Code § 65.1-63, relating to selective employment of disabled workers. ¹

That statute is the focus of another case decided today. In Klate Holt Co. v. Holt, 229 Va. 544, 331 S.E.2d 446 (1985), we determined the Commission erred in holding that an employee was justified in refusing offers of selective employment. In the present cases, we deal with the validity and effect of a waiting period fashioned by the Commission in the course of its application of § 65.1-63 to the instant claims.

The Claim of Hopkins Dicks, Jr.

Appellee Dicks sustained a compensable back injury in a 1979 industrial accident while employed by appellant Chavis Transfer. Dicks' compensation has been suspended a number of times by the Commission. In 1980, his compensation was suspended for his unjustified failure to keep scheduled medical appointments. In 1981, the compensation payments were reinstated. Later in 1981, compensation was terminated because the employee was physically able to return to work. In 1982, compensation was reinstated. In 1983, compensation was suspended for Dicks' failure, without justification, to keep medical appointments. Later in 1983, compensation was reinstated.

On January 24, 1984, in a separate action preceding the present case, the Commission suspended Dicks' compensation for his unjustified failure to keep interviews for prospective selective employment. The ruling was made on appellant insurance carrier's application alleging a change in condition under Code § 65.1-8. ²

The employee did not seek review of that decision. Instead, Dicks filed the present proceeding three days after that award. In his application for reinstatement of compensation, Dicks alleged a change in condition as defined in § 65.1-8 and asserted he was willing to keep any and all job interviews arranged for prospective, selective work suitable to his capacity. During a subsequent hearing, the employee stated he was willing to keep appointments for job interviews scheduled by a rehabilitation specialist retained by the employer's insurer. The specialist testified that he had been searching unsuccessfully for employment for Dicks within his capacity. He stated that jobs offering light duty for this particular employee were "tough to find."

The hearing commissioner considered the case as falling within the last clause of § 65.1-63, note 1 supra, requiring termination of compensation unless refusal of employment procured suitable to the employee's capacity was justified. Noting that the case dealt with job interviews instead of offers of selective work, the deputy commissioner felt the statute afforded the claimant the opportunity to cure his refusal to the satisfaction of the Commission so his compensation would not remain suspended indefinitely. Thus, the deputy finding that "the evidence does not preponderate in proving a change in condition at this juncture," ordered Dicks' compensation to remain suspended for a six-week period "to afford the employer and/or its insurer an opportunity to secure and offer the claimant selective work suitable to his capacity or to arrange interviews for same."

Upon review, the full Commission agreed with the deputy commissioner. The Commission acknowledged that "on numerous occasions" it has "held that the refusal of the employee to cooperate in job interviews is tantamount to the refusal of selective employment." Nevertheless, the Commission reasoned that because Dicks' compensation was terminated as the result of the January 1984 award, "there has been little inducement for the carrier to have their placement agency continue working with the employee" to procure selective employment. But, noting "the employee's past history of a refusal to cooperate with both medical treatment and placement efforts," the Commission agreed that compensation should not be reinstated until Dicks made "a good-faith effort" to cooperate. Thus, the Commission amended the deputy's award "to provide that the employee must be offered selective work within his capacity within sixty days from the date of [the Commission's] Opinion or compensation payments will be automatically resumed without further hearing unless other conditions justify a modification of this Order."

The Claim of Dwight E. Shelton

Appellee Shelton sustained a compensable shoulder injury in a 1982 industrial accident while employed by appellant Rust Engineering Company. Subsequently, the claimant was awarded compensation under Code § 65.1-56 for a fixed period based upon a ten per cent permanent partial loss of use of the left arm. Upon termination of those payments, Shelton applied in July 1983 for reinstatement of benefits for disability. Following a hearing, a deputy commissioner denied the application. The deputy found that Shelton, even if disabled, had failed to expend the necessary effort to improve his physical condition and that he had failed to accept offers of selective employment within his work capabilities under § 65.1-63. Upon review of that award in January 1984, the full Commission affirmed the deputy. The Commission agreed with the hearing commissioner that Shelton "had failed to cooperate with considerable effort to secure selective employment within his physical capabilities...."

By letter dated February 1, 1984, counsel for Shelton wrote the insurer, with a copy to the Industrial Commission, stating that "unjustified refusal under § 65.1-63 can be cured and compensation reinstated when the claimant states his willingness to cooperate with rehabilitation." Counsel further stated: "I have talked with Mr. Shelton and he has agreed to cooperate to the fullest with rehabilitative efforts at this time. We request that compensation be reinstated as of this date."

One month later, Shelton filed the present proceeding, alleging a change in condition and seeking compensation for additional total work incapacity beginning in June 1983. Following a hearing, a deputy commissioner denied the application in April 1984. He found that Shelton had not proved any change in condition and stated there had been no change in Shelton's "attitude" since the last hearing in September 1983.

Upon review based on the record before the deputy, the full Commission reversed. The Commission found, in a June 1984 opinion, that Shelton was unable to return to his regular employment because of his injury. The Commission noted that no evidence was offered during the April 1984 hearing regarding contact between the employee and the employer, or the insurer, in an effort to pursue further selective employment opportunities. The Commission said: "The claimant did testify as to his own efforts in making applications for selective employment; however, his testimony in this regard was vague and not persuasive." The Commission then referred to counsel's letter of February 1, 1984 and stated that, following the January suspension of compensation, "the claimant, by counsel, then advised the employer that he was willing to cooperate, essentially curing his earlier refusal." The Commission concluded that the insurer "shall attempt to find appropriate selective employment of the claimant within sixty days from the date of this opinion." The Commission further ordered Shelton to cooperate with the placement efforts and decreed that, if the efforts proved unsuccessful, "compensation for temporary total disability shall be resumed at the expiration of...