Legal Summaries Contents Home Page Contents
VOCATIONAL REHABILITATION
VWC Voc Rehab Guidelines
Because claimant did not prove that the requested vocational retraining in the form of a two-year associate's degree in computer technology was "reasonable and necessary" under Code Sec. 65.2-603(A)(3), the commission did not err in refusing to require employer to finance such retraining. Code Sec. 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 Code Sec. 65.2-603(A)(3) 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 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 Sec. [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 Sec. 65.2-706(A); James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488-89 (1989). Here there was an absence of evidence of claimant's physical and mental aptitude for computer programming and his likelihood of success in the new vocation, factors to be considered under Code Sec. 65.2-603(A)(3), despite claimant's assertions to the contrary. although the commission 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, and was entitled to conclude his testimony was insufficient to meet his burden of proof. The evidence also failed to establish that an 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. 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 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. Code Sec. 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 Sec. 65.2-603(A)(3)); 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. 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, was more than appropriate under Code Sec. 65.2-603. Robert A. Irwin v. Contemporary Woodcrafts, Record No. 0416-99-4 (December 7, 1999). WP Version.Code Sec. 65.2-603(B) provides that [t]he unjustified refusal of the employee to accept . . . vocational rehabilitation services when provided by the employer shall bar the employee from further compensation until such refusal ceases and no compensation shall at any time be paid for the period of suspension unless, in the opinion of the Commission, the circumstances justified the refusal.(Emphasis added.) "[P]hrases such as 'unless in the opinion of the Commission such refusal was justified' are provided so that those appointed to implement the compensation laws may make discretionary judgments that carry out the legislative intent." DePaul Medical Center v. Brickhouse, 18 Va. App. 506, 508, 445 S.E.2d 494, 495 (1994).
"'If an injured employee refuses employment secured for him suitable to his capacity, he shall only be entitled to the benefits provided for in Sec. 65.2-603 during the continuance of such refusal, unless in the opinion of the Commission such refusal was justified.'" DePaul Med. Ctr. v. Brickhouse, 18 Va. App. 506, 508, 445 S.E.2d 494, 495 (1994) (quoting Code Sec. 65.2-510). Code Sec. 65.2-510 vests broad discretion in the commission to determine whether under the circumstances an employee is justified in refusing selective employment. See Brickhouse, 18 Va. App. at 508, 445 S.E.2d at 495. It is not clear what the specific qualifications for the Work Enterprises jobs offered to claimant were. Dr. Widmeyer, who reviewed the job descriptions, stated in his deposition that "assuming they don't require you to sit in a fixed position, obviously, there's nothing in the job itself that would bother anybody." It is also not clear what skills an employee is expected to develop in the course of employment. Mr. [Richard] Fender testified that the claimant would be "trained"; the job in which he intended to place the claimant, however, only involved cutting lightweight netting in seven-inch sections and placing them in a plastic bag. There is also no evidence of the economic impact of the jobs, if any. It may be inferred that the seed packages are utilized in wedding ceremonies; there is no evidence, however, that this is a genuine business concern. . . . The commission found that the jobs offered to the claimant were justifiably refused, given his lengthy, valuable employment history, his considerable and chronic symptoms, and his need, as reported in his [Functional Capacity Evaluation], of a careful and calculated approach to returning him to gainful employment. Assuming without deciding that employer offered employment to claimant that was within his residual capacity, the Court of Appeals found that credible evidence supports the finding that claimant was justified in refusing such employment. The testimony of claimant, as well as the medical records and physicians' deposition testimony, amply supports the commission's finding that claimant's placement in the Work Enterprises jobs would serve no legitimate rehabilitative purpose and was not appropriate vocational rehabilitation pursuant to Code Sec. 65.2-603(A)(3). City of Buena Vista Public Works v. Southers , Record No. 1064-99-3 (September 14, 1999). WP Version.
Cure of Unjustified Refusal. A cure by words alone, a "verbal cure," of an unjustified refusal of medical treatment, is effective if it is made in good faith. In the analogous area of the cure of a refusal of selective employment or vocational rehabilitation, courts have held that a verbal cure is effective if it is made in good faith. See Christiansen v. Metro Bldg. Supply, Inc., 18 Va. App. 721, 724, 447 S.E.2d 519, 521 (1994), aff'd on reh'g, 19 Va. App. 513, 453 S.E.2d 302 (1995) (refusal of selective employment may be cured by claimant's offer to accept the previously refused employment if made "in good faith"); James v. Capitol Steel Constr. Co., 8 Va. App. 512, 518, 382 S.E.2d 487, 490 (1989) ("[a]ssuming that the refusal to cooperate with vocational rehabilitation could be cured by a verbal statement of willingness to cooperate . . . it must be made in good faith"); Thompson v. Hampton Institute, 3 Va. App. 668, 671, 353 S.E.2d 316, 317 (1987) (claimant may cure refusal of selective employment when he "in good faith advises his employer that he is willing to accept such work"). Courts have "historically treated and discussed [these similar areas] in conjunction with one another," Hercules, Inc. v. Carter, 13 Va. App. 219, 223, 409 S.E.2d 637, 639 (1991), aff'd on reh'g en banc, 14 Va. App. 886, 419 S.E.2d 438 (1992). For a verbal cure of an unjustified refusal of medical care to be effective, it must be made in good faith. A claimant must demonstrate his or her good faith through an affirmative action or a showing of circumstances mitigating the failure to act. Fairfax County School Board v. Ellen M. Rose, Record No. 1700-97-4 (January 26, 1999).
Legal Summaries Contents Home Page Contents