                    COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Coleman and Willis


JOHN D. LUCEY & SON PLUMBING
AND
POTOMAC INSURANCE COMPANY OF ILLINOIS
                                                MEMORANDUM OPINION *
v.   Record No. 1003-98-1                           PER CURIAM
                                                  SEPTEMBER 8, 1998
RONALD TATEM


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
            (Bradford C. Jacob; Taylor & Walker, on
            brief), for appellants.

            (Kevin L. Hubbard, on brief), for appellee.



     John D. Lucey & Son Plumbing and its insurer (hereinafter

referred to as "employer") contend that the Workers' Compensation

Commission ("commission) erred in finding that (1) a de facto

award existed; (2) Ronald Tatem's ongoing disability was causally

related to his October 27, 1995 injury by accident; (3) Tatem did

not unjustifiably refuse selective employment; and (4) employer

was responsible for the cost of medical treatment related to

Tatem's psoriatic condition.   Employer also contends that the

commission erred in considering Dr. Richard T. Holden's June 2,

1997 medical report as evidence.   Upon reviewing the record and

the briefs of the parties, we conclude that this appeal is

without merit.   Accordingly, we summarily affirm the commission's

decision.    See Rule 5A:27.

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
                          I.   De Facto Award

     The commission ruled that a de facto award existed,

obviating the need for Tatem to prove that he reasonably marketed

his residual skills or that his disability was causally related

to his compensable injury by accident.     As a result, the

commission placed the burden on employer to prove that Tatem's

on-going disability was not causally related to his compensable

industrial injury.    In so ruling, the commission found the

following:
                  We decline to establish a bright line
             test for determining how many weeks of
             voluntary payments are enough for a de facto
             award. Here, the employer not only paid
             benefits for about twenty weeks but hired a
             vocational rehabilitation provider to help
             locate work and did not contest the
             compensability of the claim at the
             hearing. . . . [T]here is no evidence that
             [Tatem] declined to sign any agreements.
                  When we consider all of the employer's
             actions, we agree with the Deputy
             Commissioner that is was reasonable to infer
             that the parties had reached an agreement as
             to the payment of compensation.


     The record amply supports the commission's findings that

employer voluntarily paid benefits to Tatem, did not contest the

compensability of the claim at the hearing, and hired a

rehabilitation counselor to help Tatem find work.    Pursuant to

our holding in National Linen Serv. v. McGuinn, 5 Va. App. 265,
268-71, 362 S.E.2d 187, 188-90 (1987) (en banc), and under the

circumstances of this case, we cannot say that the commission

erred in ruling that a de facto award existed and in allocating



                                 - 2 -
the burden of proof to employer.

                         II.     Disability

     On appeal, we view the evidence in the light most favorable

to the party prevailing below.     See R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

Unless we can say as a matter of law that employer's evidence

sustained its burden of proof, the commission's findings are

binding and conclusive upon us.     See Tomko v. Michael's
Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).

     In ruling that employer failed to prove that Tatem's ongoing

disability was not causally related to his compensable accident,

the commission found as follows:
               Dr. Holden believes that [Tatem's]
          psoriatic arthritis was a significant reason
          for his disability but also believes that the
          claimant had nerve damage from a fragment of
          a ruptured disc and that the psoriatic
          arthritis caused an inflammatory process. In
          his most recent report of June 2, 1997, Dr.
          Holden again expressed his inability to
          determine the exact cause or causes of
          [Tatem's] continuing disability. He stated
          [Tatem's] psoriatic arthritis "[m]ust be put
          under control before any further (orthopedic)
          evaluations can be done."
               Dr. Holden is unable to render an
          opinion as to the cause of [Tatem's]
          continuing problems and has not excluded
          [Tatem's] industrial accident as a cause.
          The principle is well established that full
          benefits are allowed where a disability has
          two causes, one related to the employment and
          one unrelated.


     Based upon Dr. Holden's expressed inability to determine the

extent to which Tatem's industrial accident contributed to his



                                 - 3 -
ongoing disability and the lack of any medical opinion ruling out

the industrial accident as a cause of Tatem's continuing

disability, the commission could reasonably infer that Tatem's

disability had two possible causes, one-work related and one

non-work-related.   Applying the "two-causes" rule, the commission

did not err in awarding Tatem continuing disability benefits.

See Shelton v. Ennis Business Forms, Inc., 1 Va. App. 53, 55, 334

S.E.2d 297, 299 (1985).    Accordingly, we cannot find that

employer's evidence sustained its burden of proving that Tatem's

disability was not causally related to his compensable injury by

accident.
        III.   Unjustified Refusal of Selective Employment

     "To support a finding of refusal of selective employment

'the record must disclose (1) a bona fide job offer suitable to

the employee's capacity; (2) [a job offer that was] procured for

the employee by the employer; and (3) an unjustified refusal by

the employee to accept the job.'"       James v. Capitol Steel Constr.
Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 489 (1989) (quoting

Ellerson v. W.O. Grubb Steel Erection Co., 1 Va. App. 97, 98, 335

S.E.2d 379, 380 (1985)).

     In affirming the deputy commissioner's decision that Tatem's

conduct at his job interview did not sabotage the possibility of

employment as a janitor with Community Alternatives, the

commission found as follows:
               According to [Tatem's] testimony, he
          told the prospective employer that he had
          reservations about whether he could perform



                                - 4 -
           the duties. [Tatem] testified "I told them I
           wasn't sure if I could do that, I would try.
            I would try the best I could."
                [Tatem's] testimony is substantially
           corroborated by the testimony of the
           vocational rehabilitation counselor who was
           advised by the prospective employer that
           [Tatem] "[s]tated that he wasn't sure if he
           was able to do the job." The prospective
           employer did not offer the job to [Tatem]
           because they could not hire someone "[i]f
           they don't feel that they can do the job."
                [Tatem] expressed his concern,
           admittedly subjective, about his ability to
           perform the job. Most importantly, he also
           stated his willingness to try.
                Just one month before this job
           interview, on September 3, 1996, Dr. Holden
           reported that [Tatem] could perform a
           sedentary job on "a trial basis," that
           [Tatem] would experience pain if he sat or
           stood too long and that he needed to
           alternate sitting and standing every fifteen
           to twenty minutes. We find [Tatem]
           reasonably expressed concern about his
           ability to perform a job, which, as described
           in the job description, required him to stand
           for three hours and sit for less than one.

     Those findings are supported by Tatem's testimony, which was

corroborated by the vocational rehabilitation counselor, and the

commission's resolution of the conflict between the

standing/sitting requirements stated in the job description and

Dr. Holden's September 3, 1996 trial release to sedentary

employment with alternate standing and sitting every fifteen

minutes.   Thus, we cannot find that Tatem's conduct at the job

interview was unreasonable and calculated to prevent an actual

offer of employment.   See Johnson v. City of Clifton Forge, 9 Va.

App. 376, 378, 388 S.E.2d 654, 655 (1990) (en banc).
Accordingly, the commission did not err in finding that Tatem's



                               - 5 -
conduct did not constitute an unjustified refusal of selective

employment with Community Alternatives.

     We also hold that the commission did not err in finding that

Tatem did not unjustifiably refuse or sabotage a position with

White's Nursery and Greenhouse, Inc. ("White's") as a greenhouse

production worker.   Employer speculated that information

contained on Tatem's job application regarding his inability to

lift over forty-five pounds caused White's not to grant Tatem an

interview or offer him a job.   However, no evidence proved why

White's did not grant Tatem an interview or offer him a job.

Rather, the evidence established that Tatem, who cannot read or

write, received assistance from the vocational rehabilitation

counselor and/or family members in completing the application.

No evidence proved who wrote the statements regarding Tatem's

lifting ability on the job application.   Moreover, the

rehabilitation counselor admitted that the job with White's did

not require lifting more than twenty-five to thirty pounds.
     Thus, the evidence failed to establish that the commission

erred in ruling that Tatem did not unjustifiably refuse selective

employment with White's.

               IV.   Psoriatic Condition/Causation

     Based upon Dr. Holden's June 2, 1997 medical report, the

commission could reasonably infer that treatment of Tatem's

psoriatic arthritis condition was a medically necessary component

of the successful and complete evaluation of the orthopedic




                                - 6 -
problems caused by Tatem's compensable injury by accident.    In

light of these circumstances and our holding in Papco Oil Co. v.

Farr, 26 Va. App. 66, 74, 492 S.E.2d 858, 862 (1997), we cannot

say that the commission erred in holding employer responsible for

the cost of medical treatment necessary to bring Tatem's

pre-existing psoriatic arthritis condition under control in order

to treat his work-related condition.

          V.   Dr. Holden's June 2, 1997 Medical Report
     Page forty-nine of the transcript of the June 10, 1997

hearing reflects that the deputy commissioner left the record

open for fourteen days, without objection from employer, to allow

Tatem to designate Dr. Holden's June 2, 1997 medical report as

part of the record.   Thus, although the commission's opinion

incorrectly cited to page forty-seven of the transcript, the

commission correctly found that the deputy commissioner left the

record open for Tatem to file the report.

     The record shows that Tatem filed Dr. Holden's June 2, 1997

report with the commission on June 10, 1997, before the

fourteen-day period expired.   Accordingly, the commission did not

err in considering that report in rendering its decision.

     For the reasons stated, we affirm the commission's decision.
                                                          Affirmed.




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