                  COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Annunziata and Lemons
Argued at Alexandria, Virginia


ROBERT A. IRWIN
                                         MEMORANDUM OPINION* BY
v.   Record No. 0416-99-4                 JUDGE LARRY G. ELDER
                                            DECEMBER 7, 1999
CONTEMPORARY WOODCRAFTS, INC. AND
 PENNSYLVANIA MANUFACTURERS ASSOCIATION INS. CO.


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          M. Joseph Pierce (Claude D. Convisser;
          Claude D. Convisser & Associates, P.C., on
          briefs), for appellant.

          (Geoffrey S. Gavett; Gavett and Datt, P.C.,
          on brief), for appellees. Appellees
          submitting on brief.


     Robert A. Irwin (claimant) appeals from the decision of the

Workers' Compensation Commission (commission) denying his

request to require Contemporary Woodcrafts, Inc., and

Pennsylvania Manufacturers Association Insurance Company

(collectively referred to as employer) to provide certain

vocational rehabilitation benefits.   Specifically, claimant

contends the commission erroneously (1) refused to require

employer to pay for vocational retraining in the form of a

two-year associate's degree in computer technology; and (2)

ordered employer to provide a vocational evaluation.    Because


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
claimant has not shown that the requested vocational retraining

is "reasonable and necessary" under Code § 65.2-603(A)(3), we

hold the commission did not err in refusing to require employer

to finance such an endeavor at this time.   Further, because the

record nevertheless supports a finding that claimant is in need

of vocational rehabilitation services and because Code

§ 65.2-603(A)(3) permits the commission to direct an employer to

furnish such services, we affirm the commission's order that

employer provide a vocational evaluation.

     Code § 65.2-603(A)(3) provides as follows:

          The employer shall . . . furnish or cause to
          be furnished, at the direction of the
          Commission, reasonable and necessary
          vocational rehabilitation services.
          Vocational rehabilitation services may
          include vocational evaluation, counseling,
          job coaching, job development, job
          placement, on-the-job training, education,
          and retraining. . . . In the event a
          dispute arises, any party may request a
          hearing and seek the approval of the
          Commission for the proposed services. Such
          services shall take into account the
          employee's preinjury job and wage
          classifications; his 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.

The Virginia Supreme Court has defined the term "vocational" as

used in that code section as relating to "'training in a

specific skill or trade,'" and it has defined "rehabilitation"

as "'the process of restoring an individual . . . to a useful

and constructive place in society through some form of

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vocational . . . or therapeutic retraining.'"       City of Salem v.

Colegrove, 228 Va. 290, 294, 321 S.E.2d 654, 656 (1984) (quoting

Low Splint Coal Co. v. Bolling, 224 Va. 400, 406 n.2, 297 S.E.2d

665, 668 n.2 (1982)).

     Vocational rehabilitation serves dual purposes:      "to

restore the employee to gainful employment and to relieve the

employer's burden of future compensation."    Id.    Therefore, in

determining the appropriateness of a proposed program, the court

should consider, in addition to the factors set out in the

statute, "'the relative costs and benefits to be derived from

the program.'"   Id. (quoting Lancaster v. Cooper Indus., 387

A.2d 5, 9 (Me. 1978)).   What constitutes "'reasonable and

necessary vocational rehabilitation training services'

authorized by Code § [65.2-603], as applied to a particular

claimant's case, . . . is a mixed question of law and fact."

Id. at 293, 321 S.E.2d at 656.    The commission's findings of

fact will be upheld on appeal if they are supported by credible

evidence.   See Code § 65.2-706(A); James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488-89 (1989).

     The record supports the finding of the commission regarding

the absence of evidence of claimant's aptitude for computer

programming and his likelihood of success in the new vocation,

factors to be considered under Code § 65.2-603(A)(3).      Claimant

admitted concerns over his mathematical ability and said the

curriculum required "some fairly intensive math to do the

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computer sciences and engineering degree."   He also admitted to

having some physical problems using a computer keyboard and said

he did not want to enroll in more than nine credit hours a

semester until he became more certain of his abilities.

Although he testified that he had taken some vocational aptitude

tests which indicated his ability to succeed in the program, the

results of those tests were not available at the hearing.

     Claimant argues that the commission was required to accept

as definitive his uncontradicted testimony that he had the

requisite physical ability and intellectual aptitude to succeed

as a computer programmer.   He cites the principle that "[t]he

trier of fact must determine the weight of the testimony and the

credibility of the witnesses, but it may not arbitrarily

disregard uncontradicted evidence of unimpeached witnesses which

is not inherently incredible and not inconsistent with the facts

in the record."   Morris v. Badger Powhatan/Figgie Int'l, Inc., 3

Va. App. 276, 279, 348 S.E.2d 876, 877 (1986).

     Here, the commission did not arbitrarily reject claimant's

testimony.   Rather, it considered the basis for claimant's

testimony.   Claimant gave factual testimony about his

keyboarding ability and his performance on certain aptitude

tests.   Based on his having taken two computer courses and

spoken with various teachers and people in the industry, he gave

testimony regarding his physical and intellectual ability to

complete the two- or four-year college programs and to succeed

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as a computer programmer.   Therefore, in determining what weight

to give claimant's testimony, the commission was entitled to

consider the basis for that testimony.   Here the commission was

entitled to conclude his testimony was insufficient to meet his

burden of proof.

     The evidence also fails to establish that the associate's

degree, standing alone, would qualify claimant for a job in

computer programming or, even if it did, that the benefit to

claimant and employer from such a job, financial or otherwise,

would justify the cost to employer of claimant's completing the

two- or four-year program under the facts of this case.

Claimant opined that the associate's degree would qualify him

for few if any computer-related jobs and provided no evidence,

other than his own opinion, regarding the one position he

identified specifically--in the school's computer lab.    He also

provided no evidence other than his own opinion regarding his

likelihood of finding employment in the field with a four-year

degree.   Claimant freely admitted that his ultimate goal was to

earn a master's degree in computer programming and obtain a job

earning substantially more than his pre-injury wage.   Although

"such self-improvement is highly laudable," Colegrove, 228 Va.

at 294, 321 S.E.2d at 656, any vocational rehabilitation

required under the statute must take into consideration the

employee's pre-injury job and wage classification, his

likelihood of success in his new vocation and the relative costs

                               - 5 -
and benefits to both claimant and employer.    Here, assuming

claimant had the ability to complete the two- or four-year

program, the evidence supports a finding that the benefits from

such an education to claimant and employer are speculative at

best.

        Based on this evidence, we cannot conclude the commission

erred in holding that claimant failed to prove the associate's

degree program was "reasonable and necessary" under Code

§ 65.2-603(A)(3).

        Claimant also contends that the commission lacked the

authority to order employer to perform a vocational evaluation

in the absence of a request from the employer for such an

evaluation.    We disagree.   Code § 65.2-603(A)(3) specifically

states that "[t]he employer shall . . . furnish or cause to be

furnished, at the direction of the commission, reasonable and

necessary vocational rehabilitation services" and that such

services "may include vocational evaluation" and the like.      Code

§ 65.2-603(A)(3) (emphasis added); cf. United Parcel Serv. of

America, Inc. v. Godwin, 14 Va. App. 764, 768, 418 S.E.2d 910,

913 (1992) (upholding commission's authority to direct employer

to retrain employee if it could not find him employment

comparable to his pre-injury employment).    Such authority does

not require a request from either the employer or the claimant.

Such an order also is reasonable under the facts of this case.

Although claimant appears to possess marketable job skills, he

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had been unemployed for almost two years at the time of the

hearing before the deputy commissioner, due in part to the

inability of claimant and employer's vocational consultant to

agree on suitable work or retraining options for him.

Therefore, we view the commission's order to employer to

evaluate claimant's aptitude "specifically in the area of

computer technology," an area in which claimant has expressed a

strong interest, as more than appropriate under Code § 65.2-603.

     For these reasons, we hold the commission did not err (1)

in refusing to require employer to pay claimant's community

college tuition and expenses at this time or (2) in requiring

employer to provide a vocational evaluation.   Therefore, we

affirm the commission's ruling.

                                                           Affirmed.




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