                                COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Beales and Powell
Argued at Richmond, Virginia


BIG LOTS STORES, INC. AND
 AMERICAN ZURICH INSURANCE COMPANY
                                                                MEMORANDUM OPINION * BY
v.      Record No. 0095-10-2                                    JUDGE RANDOLPH A. BEALES
                                                                    NOVEMBER 9, 2010
JUDY DIANE BROWNING


               FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                  Andrew M. Alexander (Kathryn Lea Harman; Semmes, Bowen &
                  Semmes, on briefs), for appellants.

                  William C. Carr, Jr. (Emroch & Kilduff, LLP, on brief), for appellee.


        Judy Diane Browning (claimant) was injured in a compensable accident on December 1,

2004, while working for Big Lots Stores, Inc. The Workers’ Compensation Commission

(commission) entered various awards for temporary partial or temporary total disability benefits.

The last award provided claimant with temporary total disability benefits beginning on June 14,

2005. Big Lots Stores, Inc., and its insurer (collectively, Big Lots) submitted a letter to the

commission on February 13, 2009, requesting that claimant’s award be terminated because she had

unjustifiably refused to cooperate with the reasonable vocational rehabilitation efforts that Big Lots

had provided for her. The commission denied this request.

        On appeal of the commission’s decision, Big Lots argues that the commission erred because

its evidence proved that claimant had refused to cooperate with its vocational rehabilitation efforts. 1


        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        1
         Although Big Lots lists two separate issues, they raise the same question. Therefore, we
do not address the issues separately in this opinion.
After reviewing the commission’s decision and the record in this case, we find that the commission

did not err. Thus, we affirm the commission’s denial of the motion to terminate claimant’s benefits.

                                         BACKGROUND

       “In accordance with our well established standard of review, we view the evidence in the

light most favorable to [claimant], who prevailed before the commission. The commission’s

factual findings are conclusive and binding on this Court when those findings are based on

credible evidence.” Westmoreland Coal Co. v. Russell, 31 Va. App. 16, 20, 520 S.E.2d 839, 841

(1999) (citation omitted). Using this well established standard of review, we find the evidence in

this record established the following factual background.

       Claimant was injured in a compensable accident on December 1, 2004, while she was

attempting to help a customer in a Big Lots store located in Petersburg, Virginia. After this

accident, Big Lots continued to employ claimant in a light-duty position, but after six months the

company fired her because she could not perform all of her duties while she remained on the

light-duty restrictions. The commission entered an open award of temporary total disability

benefits, beginning on June 14, 2005, at a rate of $176.50 per week.

       Claimant’s work restrictions included no standing for more than two hours out of every

eight hours, no heavy lifting, and no “significant squatting, bending or climbing.” Big Lots

provided vocational rehabilitation services to claimant and attempted to find a new job for her in

the Petersburg area – a job that would comply with her restrictions and qualifications. However,

those efforts were not successful.

       In late September 2007, claimant decided to move to Alaska to live with her daughter and

son-in-law. She based this decision on several factors. Her disability payments from Big Lots

did not cover her expenses in Virginia, and she could not find appropriate and affordable

housing, given her limited ability to walk up and down stairs. Once she moved to Alaska, her

                                                -2-
family could assist – and did assist – claimant with her expenses, and she began to pay off the

overdue bills that had mounted after her compensable accident.

        The town in Alaska where claimant lived with her daughter was quite small – less than

1000 people. Fairbanks, Alaska, which is an hour-and-a-half drive from claimant’s new home, is

the closest city of any size.

        Big Lots contacted Northern Rehabilitation Service (NRS) in Anchorage, Alaska, to help

claimant find a job. Anchorage was approximately a six-hour drive from claimant’s new home.

The rehabilitation provider never personally met with claimant, but NRS had claimant’s medical

reports, had some written information from her, and talked to claimant over the phone.

        Claimant continued to have limitations on her abilities to perform physical tasks after the

move to Alaska. She explained that she could not take walks, could not do most household

chores, and could not lift her grandchildren. She was only able to drive short distances with any

regularity. When she went to Fairbanks – approximately once a month for a doctor’s

appointment or shopping – she had to wear a brace and always arrived feeling “real stiff.”

        Allison White, an employee of NRS, described her understanding of claimant’s

restrictions as “she should have a break from any standing every two or three hours and that she

should limit her bending, squatting, and kneeling.” In addition to her physical problems, White

acknowledged that claimant’s job search was limited by her lack of a high school diploma and

her lack of computer skills.

        NRS sent claimant two resumes based on the information that she provided to them.

Over a six-month period, NRS sent claimant a total of thirteen job listings. Nothing in the record

indicates that NRS followed up on any of these listings by contacting the potential employers to

arrange interviews for claimant or to determine if she was qualified for the openings.




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       Eleven of the thirteen positions were located in Fairbanks, at least eighty miles away

from claimant’s home. One of the two listings that was near claimant’s home involved working

in a store on a local military base, but claimant had already contacted the base and discovered

that she could not do the work that was required for that job. The other local position was a

“parent line job,” essentially answering telephone calls that would be routed to claimant’s home

phone. However, this job announcement stated that applicants were required to have six months

of experience in order to be considered for the job, and claimant had no training in telephone

work or in counseling parents.

       Of the eleven job openings in Fairbanks that NRS sent to claimant, all but one seemed to

require more standing or bending than claimant’s restrictions would allow. Most of the positions

had minimum certification, education, or experience requirements that claimant did not meet.

       NRS sent a letter to claimant suggesting that, in addition to the listings that they sent, she

look at several websites to find a job. However, nothing in the record indicates that she had a

computer. In addition, NRS acknowledged that she did not have any computer skills.

       Claimant did not follow up on the thirteen job openings, with the exception of the job on

the military base. 2 She did inquire about a clerk’s position in a local convenience store, an

opening that NRS did not send to her, but the position required more lifting and bending than her

restrictions allowed.

       Big Lots filed a motion with the commission, asking that claimant’s award be suspended

because she had unjustifiably failed to cooperate with its reasonable vocational rehabilitation




       2
          We note that claimant was under an open award for benefits. Big Lots does not contend
that claimant was under a unilateral obligation to search for employment after entry of that
award, but instead claims only that she had an obligation to cooperate with its reasonable
vocational rehabilitation services to find employment for her.

                                                -4-
efforts pursuant to Code § 65.2-603. 3 Big Lots contended that claimant was uncooperative with

NRS because she did not return forms quickly and because she did not apply for any of the

thirteen positions that were sent to her.

       The deputy commissioner found that Big Lots had not “demonstrated by a preponderance

of the evidence that it performed the sufficient amount of screening to determine if the particular

jobs offered the claimant were within her work capacity.” The commission agreed that Big Lots

“failed to establish that the claimant refused to cooperate with vocational rehabilitation” because

the job listings were “inadequate” and not “appropriate for the claimant.” Big Lots appealed this

decision.

                                            ANALYSIS

       Big Lots argues that claimant unjustifiably failed to cooperate with the vocational

services that it offered to her through NRS and, therefore, that her benefits should be suspended

under Code § 65.2-603(B).

                                       A. Standard of Review

       As the party asking for modification of an award, Big Lots had the burden before the

commission to prove that claimant unjustifiably failed to cooperate. Cf. Pilot Freight Carriers,

Inc. v. Reeves, 1 Va. App. 435, 438, 339 S.E.2d 570, 572 (1986). The commission found that

Big Lots did not meet this burden and that the vocational rehabilitation efforts were “inadequate”

and not “appropriate for the claimant.”

       On appeal,

               we defer to the commission in its role as fact finder. VFP, Inc. v.
               Shepherd, 39 Va. App. 289, 292, 572 S.E.2d 510, 511 (2002). “If
               supported by credible evidence, the factual findings of the
               commission are binding on appeal.” Tomes [v. James City Fire],

       3
         The commission granted Big Lots’s additional request that claimant undergo further
medical testing to determine the extent of her disability. This ruling was not appealed, and,
therefore, we do not address it here.
                                                -5-
                39 Va. App. [424,] 430, 573 S.E.2d [312,] 315 [(2002)] (citations
                omitted). The commission’s “conclusions upon conflicting
                inferences, legitimately drawn from proven facts, are equally
                binding on appeal.” Watkins v. Halso Eng’g, Inc., 225 Va. 97,
                101, 300 S.E.2d 761, 763 (1983).

Tuck v. Goodyear Tire & Rubber Co., 47 Va. App. 276, 282, 623 S.E.2d 433, 436 (2005).

                         B. Reasonable Vocational Rehabilitation Services

        Under Code § 65.2-603(A)(3), after an award for benefits is entered, “[t]he employer

shall also furnish or cause to be furnished, at the direction of the Commission, reasonable and

necessary vocational rehabilitation services . . . .” Pursuant to subsection (B),

                [t]he unjustified refusal of the employee to accept such medical
                service or 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.

Therefore, if an employer offers reasonable vocational rehabilitation services to a claimant who

is under an award, that claimant cannot refuse to cooperate with the employer unless the

claimant’s refusal is “justified.”

        Under the provisions of Code § 65.2-603(A)(3), reasonable vocational rehabilitation

services must “take into account the employee’s preinjury job and wage classifications; [her]

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.” This standard is similar to the

evaluation used to determine if an employee has unjustifiably refused an offer of employment

prior to entry of an award under Code § 65.2-510. See Ellerson v. W.O. Grubb Steel Erection

Co., 1 Va. App. 97, 98, 335 S.E.2d 379, 380 (1985) (“In order to support a finding based upon

Code § 65.1-63 [recodified at Code § 65.2-510], the record must disclose (1) a bona fide job

offer suitable to the employee’s capacity; (2) procured for the employee by the employer; and

(3) an unjustified refusal by the employee to accept the job.” (emphasis added)).

                                                -6-
       This Court considered Code § 65.2-603 in James v. Capitol Steel Constr. Co., 8 Va. App.

512, 382 S.E.2d 487 (1989), and affirmed the commission’s decision that James unjustifiably

refused to cooperate with the vocational rehabilitation efforts of his employer. We explained in

reaching that decision:

               James’ refusal to meet with Margeson in order to discuss his work
               options, experience, and limitations frustrated her job search
               efforts in his behalf. This evidence establishes that James’
               unconditional rejection of Margeson’s efforts demonstrated an
               unwillingness on his part to cooperate with rehabilitation efforts.
               James’ unilateral action thwarted Capitol Steel’s efforts to secure
               employment within James’ residual capacity.

Id. at 517, 382 S.E.2d at 490. Big Lots contends that this decision supports its position that the

commission erred in denying its motion to suspend claimant’s benefits.

       However, unlike the facts in James, claimant here provided information to NRS. The

employees of NRS did not testify that they lacked information from claimant and, therefore,

could not find job openings for her. Nothing in this record suggests that claimant did not provide

sufficient information to NRS. Instead, as the commission found, the evidence proved that NRS

failed to use that information to adequately screen the job openings that were sent to claimant.

NRS knew that claimant had significant restrictions on her ability to stand and bend, yet it sent

her openings that required a significant amount of standing and/or bending. NRS knew that

claimant did not have a high school diploma or its equivalent, yet it sent her openings that

required a high school education. NRS sent her job openings that contained minimum

requirements in training or experience that claimant did not have. Clearly, the commission could

conclude that NRS did not screen these openings before sending them to claimant. Based on this

evidence, we cannot find that the commission erred in its ruling that the vocational rehabilitation

services were inadequate.




                                                -7-
       Big Lots also argues that this Court’s opinion in Newport News Shipbuilding & Dry

Dock Co. v. Lawrence, 38 Va. App. 656, 568 S.E.2d 374 (2002), supports its position that

claimant unjustifiably refused to cooperate with NRS. However, the facts in Lawrence are also

very different from the facts in this case. The vocational rehabilitation services provided to

Lawrence included classes, testing, and scheduled interviews, all of which Lawrence disrupted or

ignored. Id. at 659-60, 568 S.E.2d at 375. Here, NRS did not provide any classes or testing for

claimant. NRS did not call potential employers and never set up any interviews for claimant.

Claimant did fill out the forms that NRS sent to her, and NRS was able to create two resumes for

her. Claimant’s failure to follow through on job listings, for which she was either not qualified

or not physically able-bodied to do, is not comparable to the level of unjustified refusal found in

Lawrence.

       Big Lots makes one additional argument in this appeal – that claimant’s decision to move

to a small town in a rural area of Alaska is proof that she failed to cooperate with its

rehabilitation services. The dissenting commissioner found that claimant’s decision to move,

which increased the difficulty of finding a job for her, was an important factor in determining

whether she unjustifiably refused to cooperate with Big Lots’s efforts. However, Big Lots did

not make this argument to the commission, and the commission did not address this issue in its

opinion. Only the dissenting commissioner addressed this argument, and he appeared to raise

this issue sua sponte. Therefore, pursuant to Rule 5A:18, we cannot now consider this argument

on appeal. See, e.g., Uninsured Emplrs. Fund v. Wilson, 46 Va. App. 500, 506 n.4, 619 S.E.2d

476, 479 n.4 (2005). We also note that Big Lots did not file a motion asking the commission to

reconsider its ruling based on the point raised in the dissent. See Williams v. Gloucester

Sheriff’s Dep’t, 266 Va. 409, 411, 587 S.E.2d 546, 548 (2003) (finding that a claimant failed to




                                                -8-
preserve an issue for appeal, which was not argued before the commission, when he failed to file

a motion to reconsider the commission’s opinion).

                                         CONCLUSION

       We find that the record supports the commission’s finding that the vocational

rehabilitation services provided by Big Lots were inadequate and that Big Lots did not meet its

burden of proving that claimant refused to cooperate with those services. When this case was

before the commission, Big Lots did not raise the argument that claimant’s move to Alaska

established her failure to cooperate with Big Lots’s vocational rehabilitation efforts. Therefore,

we cannot consider this argument on appeal pursuant to Rule 5A:18.

       Based on the findings noted above, we hold that the commission did not err in refusing

the motion to suspend claimant’s award, and we affirm the commission’s decision.

                                                                                         Affirmed.




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