                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia


PATRICK F. MORAN

v.        Record No. 2511-94-1                 OPINION BY
                                         JUDGE NELSON T. OVERTON
R & W CONSTRUCTION, INC. AND                 OCTOBER 24, 1995
 COMMERCIAL UNION INSURANCE CO.


       FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
          John H. Klein (Rutter & Montagna, on brief),
          for appellant.

          Ruth N. Carter (William B. Judkins; Midkiff &
          Hiner, P.C., on brief), for appellees.



     Patrick F. Moran appeals the decision of the Virginia

Workers' Compensation Commission denying benefits for a

compensable injury incurred while working for his employer, R & W

Construction, Inc.    Moran brings before the Court the question of

whether he is barred from receiving workers' compensation

benefits because his Navy duty requirements prevented him from

cooperating with job search efforts and vocational rehabilitation

and from working full-time in the selective employment procured

for him by his employer.    We find no bar to compensation benefits

for the reasons set forth below, and we therefore reverse the

decision of the commission.

     Moran, a member of the United States Navy on retirement

leave before his expected discharge after twenty years of

service, was employed as a laborer by R & W Construction, Inc.

Before his actual discharge from the Navy, he injured himself in
the course of his construction employment.    After treating Moran

at a Navy hospital, the Navy required Moran to return to active

duty status until his full recovery from his injuries.    Moran was

given a "light duty" assignment requiring forty hours of work

each week.

     During this period of light duty, R & W Construction paid

Moran disability benefits.    In addition, R & W attempted to

procure suitable employment for Moran.    Because of Moran's

obligations to the Navy, he could not attend many of the proposed

sessions with the consultant who was helping him find selective

employment.    After Moran ultimately started working in selective

employment, his Navy duties again prevented him from devoting all

of his time to the job, and he worked only part-time.
     These last two events compose the subject of the dispute.

Employer contends that Moran did not cooperate in vocational

rehabilitation and unjustifiably refused selective employment.

Moran based his lack of cooperation and his refusal of employment

not on any medical condition related to the injury, but instead

relied on a job obligation to the Navy.    Employer argues that

Moran should be barred from receiving workers' compensation

benefits.     See Code § 65.2-510(A); James v. Capitol Steel Constr.

Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 489 (1989) (finding an

employee's unjustified refusal to cooperate with placement

efforts tantamount to refusal of selective employment); American

Furniture Co. v. Doane, 230 Va. 39, 43, 334 S.E.2d 548, 550




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(1985) (discharging employer from liability if employee refuses

selective employment based on conditions unrelated to the

original accident).   Moran contends that his obligations to the

Navy justify his actions.   The outcome of this appeal turns on

the sufficiency of Moran's justification.

     The refusal to cooperate and to accept employment was

justified in this case because (1) Moran possessed a condition

that prevented him from fully cooperating and (2) the employer

knew that Moran possessed this condition when he was hired.

While active military service as an excuse may present an issue

of first impression in Virginia, the existing body of law in this

area supports this conclusion.
     Moran unquestionably possessed a condition that prevented

him from freely and completely cooperating with his employer.     As

a member of the United States Armed Forces, even on leave, Moran

was obligated to obey its directives.    See Hironimus v. Durant,

168 F.2d 288, 289-90 (4th Cir.) (discussing the status and

obligations of a soldier on terminal leave), cert. denied, 335
U.S. 818 (1948).   The opinion of the commission below

acknowledged this limitation imposed upon Moran.   Neither party

disputes that Moran was required to fulfill his Navy duties or

face military charges.

     The condition preventing compliance with rehabilitation

efforts or acceptance of selective employment need not be

physical.   In Ballweg v. Crowder Contracting Co., 247 Va. 205,




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440 S.E.2d 613 (1994), the Supreme Court of Virginia held that a

claimant who had refused selective employment requiring him to

work on Saturday was justified in his refusal because his

religious beliefs as a Seventh-day Adventist rendered him unable

to work on Saturday.    Thus, a compelling non-physical reason for

refusing selective employment may be adequate.   In Ballweg, the

employer forced the claimant to choose between his religious

freedom and the selective employment.    Here, Moran's alternative

to the selective employment was his personal liberty.   We find

this condition to be sufficiently compelling.
       Having established that Moran possessed a condition that

limited his ability to cooperate and to work, the issue becomes

the knowledge of the employer.    If the employer was aware of such

a condition at the time of hiring, the employer must accept that

condition as part of the employee's abilities.   Finding

employment suitable to the employee's capacity after the accident

requires consideration of "a condition which pre-existed the

injury by accident and which was obvious to the employer when the

employee was hired."    James, 8 Va. App. at 516, 382 S.E.2d at

489.   The residual capacity of the employee must include the

characteristics of the employee prior to the injury.    Id.   In

James, the employee had a physical condition that was unrelated

to the injury, yet was obvious to the employer when he was hired.

This Court required the employer to take that condition into

consideration.    Id.




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     On the issue of knowledge, Ballweg again becomes analogous

to the case at bar.   In Ballweg, the Supreme Court recognized

that the employer hired Ballweg "with the understanding that

Ballweg could not and would not work on Saturdays."       Ballweg, 247

Va. at 207, 440 S.E.2d at 614.

     R & W Construction knew when Moran was hired that he was an

active duty member of the Navy.    Although the possibility of

being recalled to work full-time for the Navy may have been

remote, it nevertheless existed.    "Under the Virginia Workmen's

Compensation Law, the employer takes the employee as he is."
McDaniel v. Colonial Mechanical Corp., 3 Va. App. 408, 414, 350

S.E.2d 225, 228 (1986).

     Moran's condition, known to his employer, prevented him from

cooperating in this case.   These circumstances justify his

refusal to cooperate fully in the job search and vocational

rehabilitation offered and his failure to accept the full-time

selective employment offered.

     We reverse the commission's ruling in this case.      The matter

is remanded to the commission for such action as may be requisite

to provide the proper amount of compensation benefits due to the

claimant.
                                 Reversed and remanded.




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