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					VIRGINIA:                                                                                12/03/99

                                                                             Opinion by DUDLEY
v.            VWC File No. 185-08-69


Andrew J. Reinhardt, Esquire
Kerns, Kastenbaum and Reinhardt
1809 Staples Mill Road
Suite 300
Richmond, VA 23230
for the Claimant.

R. Ferrell Newman, Esquire
Thompson, Smithers, Newman and Wade, L.L.P.
P.O. Box 6357
Richmond, VA 23230
for the Defendants.

    REVIEW on the record by Commissioner Tarr, Commissioner Diamond, and
Commissioner Dudley at Richmond, Virginia.

       The employer has requested Review of the Deputy Commissioner’s May 20, 1999,

Opinion denying its Application for Hearing to terminate benefits. The employer assigns error

to the findings that the claimant did not refuse selective employment and that he cooperated

with vocational rehabilitation.1 We affirm.

       The facts were thoroughly summarized by the Deputy Commissioner and will be

repeated only as necessary to explain this Opinion. The claimant suffered a compensable

           Considering the issues involved and the complete record developed at the Hearing, we find
that oral argument as requested by the employer is unnecessary and would not be beneficial in this
case. Barnes v. Wise Fashions, 16 Va. App. 108, 428 S.E.2d 301 (1993).
                                                                        VWC File No. 185-08-69

injury to his back on March 20, 1997, and the employer has paid temporary total disability

benefits since March 21, 1997.            On January 29, 1999, the employer filed an

Application for Hearing to terminate benefits, alleging that he had refused selective

employment and had failed to cooperate with vocational rehabilitation.             The employer

submitted documentation to show that the claimant declined to complete hiring paperwork for

a position at a Wendy’s restaurant and showed disinterest in obtaining employment during an

interview at a Bojangles restaurant. The claimant filed a change in condition application on

April 5, 1999, for temporary total disability benefits commencing February 12, 1999, and


       A functional capacity evaluation (FCE) dated October 20, 1998, restricted the claimant

to sedentary work with no lifting over 20 pounds and no reaching, bending, stooping,

crouching, squatting, kneeling, climbing, or crawling. He could occasionally sit and could

frequently stand and walk. Dr. Richard P. Holm, treating orthopedic surgeon, reviewed the

FCE and reported on November 6, 1998, that the claimant could perform light-duty work with

significant restrictions.

       Phil P. Elberfeld, certified vocational rehabilitation consultant, testified to his efforts

with the claimant’s job search, including a part-time floor attendant position at Wendy’s. The

job description that Elberfeld submitted to Dr. Holm explained the duties as “clean, spray,

wipe tables/chairs; spray/wipe doors and bathroom mirrors; sweep up light trash; push Bissell

sweeper; stock condiment area.” Dr. Holm replied that the claimant could try the job, but that

        The Deputy Commissioner did not address this claim since her Opinion denied the
employer’s Application for Hearing and reinstated the claimant’s disability benefits. Neither party
appealed this finding.
                                                                     VWC File No. 185-08-69

he was “extremely doubtful” of the success. Elberfeld said that at the first interview with

Wendy’s on November 24, 1998, the claimant appeared to be disinterested in employment,

such as having unfriendly, nonverbal posture and expressing an inability to do the job.

Elberfeld described the claimant’s attitude at a second interview on December 1, 1998, as

nonverbal, unfriendly, and disinterested in employment. Elberfeld stated that the general

manager expressed interest in the claimant and told him to return on December 3, 1998, to

complete hiring paperwork. Elberfeld submitted documentation from the general manager

affirming that the claimant did not fill out the paperwork and that he stated that he was unable

to perform the duties.

       Elberfeld testified to another interview on December 1, 1998, regarding possible

employment at a Bojangles restaurant. He said that Phyllis J. Harness, manager, talked to

the claimant about a part-time floor attendant position. Elberfeld stated that the claimant told

Harness that he could not perform the duties. He said that the claimant leaned, gasped, and

displayed pain behaviors.      Elberfeld stated that the Wendy’s job required lifting up to

ten pounds and that the Bojangles job also required light lifting.

       Harness testified that Bojangles did not have a specific dining room position, but had a

crew person position.      She said that no available light-duty position met the claimant’s

restrictions, nor was there a sedentary job. Harness testified to telling him about cleaning

windows, mopping floors, and emptying trashcans. She said that the claimant responded

that he would try, although he was uncertain if he could. Harness stated that he appeared

willing and cooperative.

                                                                          VWC File No. 185-08-69

          The claimant testified that when he went to complete the paperwork at Wendy’s, he

gave Shawn Coleman, assistant manager, a copy of his restrictions.3 He submitted an

undated handwritten note from Coleman. The document reported that the restaurant did not

hire the claimant because his work restrictions did not allow him to perform the necessary

duties.        The claimant testified that Elberfeld never told potential employers about his

restrictions and that he was cooperative. He said that he told Harness that he could not bend

to pick up trash, but that he could sweep if he could stand and lean.

          The Deputy Commissioner found that the employer did not establish a suitable job

offer that was unjustly refused and that the claimant cooperated with vocational rehabilitation

efforts. We agree.

          An employer may suspend benefits to an employee who refuses selective

employment procured for him. See Virginia Code § 65.2-510. For the employee to have

unjustifiably refused selective employment, the record must disclose a bona fide job offer

suitable to his capacity, procured for him by the employer, and his refusal to accept the job.

The employer bears the burden of proving that the selective employment was within the

employee’s capacity to work. Food Lion, Inc. v Lee, 16 Va. App. 616, 619, 431 S.E.2d 342,

344 (1993).

          As noted by the Deputy Commissioner, the employer has failed to sustain its burden

of proving a bona fide job offer. Elberfeld’s documentation and testimony fail to substantiate

a true offer of employment within the claimant’s capacity. Initially, Dr. Holm was “extremely

doubtful” that he could fulfill the position as described by Elberfeld. The offer at Wendy’s was

              Although Coleman was subpoenaed to appear at the Hearing, he failed to show.
                                                                     VWC File No. 185-08-69

apparently revoked on December 3, 1998, once the potential employer became aware of the

claimant’s restrictions. It does not appear that Bojangles ever offered a job. Regardless,

Harness testified that they did not even have a light-duty position corresponding with the

claimant’s limitations. We agree that the evidence fails to establish that a legitimate offer of

selective employment was made which the claimant refused.

       Next, we address whether the claimant failed to cooperate with vocational

rehabilitation efforts.   An employer is required to furnish reasonable and necessary

vocational rehabilitation training services. Code § 65.2-603. If an employee unjustifiably

refuses to cooperate, he is barred from further compensation during the refusal. Failure to

cooperate with vocational rehabilitation includes factors such as failing to attend meetings,

refusing letters, or indicating an unwillingness to participate in a job search. See James v.

Capitol Steel Construction Company, 8 Va. App. 512, 382 S.E.2d 487 (1989).

       The record does not show that the claimant was uncooperative. The evidence is not

sufficient to prove that he acted in a manner which exhibited an intent to sabotage the job

interviews. The claimant attended the interviews and returned to Wendy’s as instructed.

While Elberfeld described his behavior as unfriendly, the Wendy’s manager nonetheless

seemed prepared to hire him and requested that he complete the necessary paperwork. As

stated above, the claimant’s limitations prevented him from getting the job, not a poor attitude

or presentation. Further, Harness at Bojangles testified that he offered to try several duties

and that he seemed willing and cooperative. There is no additional evidence of questionable


                                                                       VWC File No. 185-08-69

       The employer has failed to prove its alleged grounds for terminating the award. On

Review, we agree that the evidence shows that a bona fide offer of selective employment

never occurred, nor did the claimant fail to cooperate with vocational rehabilitation efforts.

       The Opinion below reinstating temporary total disability benefits is AFFIRMED, with

the modification that attorney’s fees for Andrew J. Reinhardt, Esquire, shall be increased to a

total of $950.

       Interest is payable on the award pursuant to § 65.2-707.

       This matter is hereby removed from the Review docket.


       This Opinion shall be final unless appealed to the Virginia Court of Appeals within

30 days of receipt.

cc:    Mr. Joseph L. Green
       191 Travis Drive
       Lawrenceville, VA 23868

       Masonomics, Inc.
       P.O. Box 128
       Colonial Heights, VA 23834

       Commonwealth Contractors Group Self-Insurance
       Landin, Inc.
       P.O. Box 17590
       Richmond, VA 23226