                  COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Frank and Agee
Argued at Chesapeake, Virginia


FLUOR CORPORATION AND
 CONTINENTAL CASUALTY COMPANY
                                         MEMORANDUM OPINION * BY
v.   Record No. 1383-01-1                 JUDGE G. STEVEN AGEE
                                            DECEMBER 4, 2001
JOEL W. BEASLEY


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION


          Fay F. Spence (Richard E. Garriott, Jr.;
          Clarke, Dolph, Rapaport, Hardy & Hull,
          P.L.C., on brief), for appellants.

          B. Mayes Marks, Jr. (Marks and Williams,
          P.C., on brief), for appellee.


     Fluor Corporation and its insurer, Continental Casualty

Company, (collectively "the employer") appeal an order of the

Workers' Compensation Commission ("the commission") rejecting

the employer's application for a hearing based upon a change in

condition and to suspend benefits previously awarded to Joel W.

Beasley ("the claimant").   The employer contends the commission

erred when it concluded that the supporting documentation filed

with the employer's application failed to establish probable

cause to believe the employer's claims were meritorious.     For

the reasons that follow, we affirm.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, only those facts necessary to a disposition of this

appeal are recited.

     On appeal, the employer argues that the commission erred

when it concluded that the employer's application and evidence

were insufficient to establish probable cause that a change in

condition had occurred and that the relief sought was

meritorious. 1   We disagree and affirm the decision of the

commission.



     1
       Upon receipt of the employer's application, a senior
claims examiner for the commission declined to docket the matter
for hearing for the following reasons:

          A thorough review of the evidence leads us
          to conclude that the employee was justified
          in refusing to participate in the
          telephone/telemarketing course offered by
          the employer. For obvious reasons, it would
          not appear appropriate to require a person
          with a back injury to drive over one hour
          each way to attend an all-day workshop in
          which the employee would be required to sit
          for the duration of the training. More
          importantly, Section 65.2-603, Code of
          Virginia, provides that vocational
          rehabilitation services "shall take into
          account the employee's pre-injury job and
          wage classifications, his age, aptitude, and
          level of education." This employee is an
          experienced crane operator, who, at 60 years
          of age, was earning an average weekly wage
          of $1,224.00. This employee's background as
          it relates to employment and training in
          telemarketing, is not consistent with the
          requirements set forth in Section 65.2-603,
          Code of Virginia.

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     This appeal involves the application of the commission's

pre-hearing procedural rules to the facts of this case.      To

carry out the provisions of the Workers' Compensation Act, the

commission has the power to make and enforce rules not

inconsistent with the Act.   See Code § 65.2-201.   When a

challenge is made to the commission's construction of its rules,

"our review is limited to a determination whether the

commission's interpretation of its own rule was reasonable."

Classic Floors, Inc. v. Guy, 9 Va. App. 90, 93, 383 S.E.2d 761,

763 (1989).

     Under Commission Rule 1.4, an employer's application for

hearing based upon a change in condition must be in writing and

under oath and must state the grounds for relief and the date

for which compensation was last paid.   In addition, the employer

must designate and send to the claimant copies of the



               . . . Inasmuch as the employee has no
          previous experience in this area of training
          and for the reasons stated above, we cannot
          find that this employee has unjustifiably
          failed to cooperate with vocational
          rehabilitation efforts. . . .

          Under the circumstances, we decline to find
          probable cause which would justify a
          suspension of compensation benefits and
          require this matter to be scheduled for a
          hearing.

This decision was upheld on review by the full commission, which
added "we find that it is not reasonable to expect that a man
with this background would be easily trained in computer skills
and telemarketing."

                               - 3 -
documentation supporting its application.    See Commission Rule

1.4(A).   Under Commission Rule 1.5, the commission is required

to review the employer's application for compliance with the

Workers' Compensation Act and the commission's rules.    At this

preliminary stage, whether an employer is entitled to a

suspension of benefits and to a hearing on the merits of its

application hinge upon whether its application is "technically

acceptable."   See Commission Rule 1.5(C).

     If the commission deems the application to be lacking in

probable cause, the application will be deemed "technically

unacceptable" and a hearing will not be scheduled.   The

commission has defined the "probable cause" standard as "'[a]

reasonable ground for belief in the existence of facts

warranting the proceeding complained of.'"    Circuit City Stores,

Inc. v. Scotece, 28 Va. App. 383, 387, 504 S.E.2d 881, 883

(1998) (citation omitted).   We have upheld this test and its

standard.   See id.

     Applying these rules and the probable cause standard to

this case, we hold that the commission did not err when it

affirmed the claims examiner's conclusion that the supporting

documentation designated by the employer was insufficient to

support a finding of probable cause to warrant the relief

sought.

     An employer who contends that a claimant has failed to

cooperate with job placement services bears the initial burden

                               - 4 -
of proving that the vocational training offered was appropriate

to the claimant's capacity.   See Code § 65.2-603(A)(3).       There

is nothing in the employer's supporting documentation to suggest

the employer can meet this burden.     The employer does not

provide in its documentation an offer of proof that the

vocational training would be appropriate for the claimant.

Rather, it only provided the commission with the fact that a

customer service training program was offered to the claimant

and he refused on the basis that it was inappropriate for him.

Therefore, we cannot conclude that the commission's

interpretation of its rules to find a lack of probable cause was

unreasonable.

     Accordingly, we affirm the decision of the commission.

                                                           Affirmed.




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