                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judge McClanahan* and Senior Judge Clements
Argued at Richmond, Virginia and by teleconference1


HOMESCAPES, LTD. AND COMMONWEALTH
 CONTRACTORS GROUP SELF-INSURANCE
 ASSOCIATION
                                                            MEMORANDUM OPINION ** BY
v.     Record No. 2536-10-2                              JUDGE ELIZABETH A. McCLANAHAN
                                                                   AUGUST 9, 2011
STEPHEN BRUCE ANDERSON, JR.


              FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 R. Ferrell Newman (Newman & Wright, RLLP, on brief), for
                 appellants.

                 Jean M. McKeen (Tomlin & McKeen, PLLC, on brief), for appellee.


       Homescapes, Ltd. and its insurer (collectively “Homescapes”) appeal a decision of the

Workers’ Compensation Commission finding Homescapes failed to prove Stephen Bruce Anderson,

Jr. (Anderson) unjustifiably refused to cooperate with vocational rehabilitation services.




       *
         Justice McClanahan prepared and the Court adopted the opinion in this case prior to her
investiture as a Justice of the Supreme Court of Virginia.
       1
          Anderson’s counsel failed to appear for the oral argument in Richmond. Although
counsel for Homescapes appeared and presented argument, the argument was not recorded.
Anderson’s counsel filed a motion requesting an extension of time to present argument, which
we granted. We also requested counsel for both parties respond to the following questions:
1. Assuming the commission held the employee was not medically released to work, how does
that finding affect arguments presented in the briefs on appeal? and 2. Is any asserted error
regarding a valid work release waived because that assignment of error was not included in
appellants’ brief as required by Rule 5A:20(c)? Counsel for both parties presented argument by
teleconference addressing these questions and the issues raised in the briefs.
       **
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       On appeal from a decision of the commission, “we view the evidence in the light most

favorable to the party prevailing below” and grant to that party the benefit of all reasonable

inferences. Tomes v. James City Fire, 39 Va. App. 424, 429-30, 573 S.E.2d 312, 315 (2002)

(citation omitted); see also Grayson Sch. Bd. v. Cornett, 39 Va. App. 279, 281, 572 S.E.2d 505, 506

(2002). Anderson suffered a compensable back injury on June 29, 2005. He was awarded total

temporary disability benefits from June 30 through August 21, 2005, and from October 12, 2006,

and continuing.

       On January 16, 2009, Dr. Harold F. Young signed a “Work Capabilities” form for

Anderson, on which only certain sections were completed. Dr. Young indicated Anderson could

never lift more than 26 pounds, could use his hands in fine manipulation and simple grasping, could

operate a motor vehicle, and could tolerate exposure to gasses, fumes, dust, and weather extremes.

Dr. Young did not indicate whether Anderson could lift less than 26 pounds and did not complete

the section regarding postures. Dr. Young did not answer the questions asking whether Anderson

had reached maximum medical improvement and whether Anderson could return to work. After

the work capabilities form was signed, Homescapes assigned Lori A. Cowan the role of vocational

rehabilitation coordinator to assist Anderson in obtaining gainful employment. In this connection,

Cowan met with Dr. Young and Anderson on February 18, 2009, to clarify Anderson’s work

capabilities. As noted in his medical records, Dr. Young told Cowan and Anderson that Anderson

needed vocational rehabilitation because Anderson only had a ninth grade education and a history of

working in the labor industry. Dr. Young believed Anderson should be retrained for a light

sedentary position and was best suited for work in restaurant management or information

technology. According to Cowan, Dr. Young gave no restrictions on standing, walking, or hours of

work. On March 5, 2009, Dr. Singh, Anderson’s treating psychiatrist, noted in his records that




                                                 -2-
Anderson had been released to very limited work and was running errands for his parents at their

restaurant.

           From March 19, 2009 through June 4, 2009, Cowan, on behalf of Homescapes, attempted to

conduct vocational assessment testing, GED registration, and develop a vocational rehabilitation

plan for Anderson. On June 12, 2009, Homescapes filed an application for termination of benefits

on the ground that Anderson failed to cooperate with these reasonable vocational rehabilitation

efforts. Anderson defended the claim on the grounds that he was never medically released to work,

he did not unreasonably refuse vocational rehabilitation efforts, and any refusal was justified.

Contrary and conflicting evidence was presented by the parties about whether Anderson reasonably

cooperated with Homescapes’ vocational rehabilitation efforts by virtue of the circumstances

surrounding Anderson’s scheduling of and attendance at meetings and appointments, as well as

attitude, or lack thereof.

           The deputy commissioner found that Anderson was released to return to some form of work

in January 2009 as approved by Dr. Young and that Cowan started a reasonable vocational

rehabilitation plan to attempt to return Anderson to some form of employment. The deputy

commissioner further found that while Anderson may have scheduled sessions with his personal

trainer to conflict with his meetings with Cowan, he made a bona fide attempt to cooperate with

Cowan. The deputy commissioner concluded that Homescapes failed to prove by a preponderance

of the evidence that Anderson unjustifiably refused to cooperate with its vocational rehabilitation

efforts.

           The commission affirmed the decision of the deputy commissioner. Although it found that

the work capabilities form signed by Dr. Young on January 16 lacked sufficient information to be a

bona fide release, it noted that Dr. Young told Cowan in February that Anderson should be retrained

for a light sedentary position. The commission concluded Anderson had attempted to comply with

                                                 -3-
Cowan’s job search efforts and was taking steps to obtain training that may allow him to return to

gainful employment.

       After an award of benefits, an employer owes a duty to an injured employee to provide

“reasonable and necessary vocational rehabilitation services.” Code § 65.2-603(A)(3). “The

unjustified refusal of the employee to accept such . . . vocational rehabilitation services when

provided by the employer shall bar the employee from further compensation until such refusal

ceases,” Code § 65.2-603(B), since the unjustified refusal to cooperate with such services is

tantamount to unjustified refusal of selective employment, James v. Capitol Steel Constr. Co., 8

Va. App. 512, 515, 382 S.E.2d 487, 490 (1989). 2 Whether the employee has unjustifiably

refused to cooperate with vocational rehabilitation services is a question of fact to be determined

from the totality of the evidence. See Newport News Shipbuilding & Dry Dock Co. v.

Lawrence, 38 Va. App. 656, 663, 568 S.E.2d 374, 377 (2002); UPS v. Godwin, 14 Va. App. 764,

767, 418 S.E.2d 910, 912 (1992). As such, the commission’s finding on this issue is conclusive

and binding upon us if credible evidence exists in the record to support its finding. Newport

News Shipbuilding, 38 Va. App. at 663, 568 S.E.2d at 377. “In determining whether credible

evidence exists,” this Court will not “retry the facts, reweigh the preponderance of the evidence,




       2
          The commission has held that an employee has “no obligation to work with vocational
rehabilitation” until medically released to return to employment. Gardner v. Legum Home
Health/Home I.V. Care & Nutritional Svc., VWC File No. 151-44-07, 1995 Wrk. Comp. LEXIS
186 (Apr. 19, 1995). Because neither party addressed the significance of the commission’s
finding that the work capabilities form was not a bona fide release to work, we requested
argument from counsel regarding how this finding affected their respective arguments. We agree
with Homescapes that although the commission found the form, in and of itself, was not a release
to work, it further found other evidence in the record established that Anderson was released to
work in a light sedentary position. This finding is apparent from the commission’s discussion of
Dr. Young’s meeting with Cowan to clarify the form and its analysis of whether Anderson
cooperated with Cowan’s efforts to return him to employment within the restrictions specified by
Dr. Young.

                                                -4-
or make its own determination of the credibility of the witnesses.” Wagner Enters., Inc. v.

Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991) (citation omitted).

       We believe credible evidence supports the commission’s finding that Homescapes failed

to prove Anderson unjustifiably refused to cooperate with vocational rehabilitation services. As

the commission noted, Anderson may have scheduled sessions with his personal trainer that

conflicted with his appointments with Cowan, but he attended the majority of his appointments

with Cowan and phoned her if there was a conflict. 3 Anderson registered for the GED program

as suggested by Cowan and made an effort to do the course work but found it difficult due to his

physical and mental limitations. Anderson indicated a willingness to work in the restaurant field

and, in particular, to enroll in the Positive Vibe Café program. On the record, based on the

totality of the evidence, and viewed in the light most favorable to Anderson, there is credible

evidence to support the commission’s finding and we, therefore, affirm the decision of the

commission.

                                                                                         Affirmed.




       3
         The only time Anderson failed to appear for an appointment without phoning Cowan
was the appointment scheduled on April 1. However, Anderson’s father testified that there was
confusion about whether Anderson had an appointment with Cowan or his mental health
counselor. The evidence in the record confirms that Anderson was being treated for bipolar
disorder and was even hospitalized for this condition in July 2009.

                                               -5-
