Opinion
Record No. 2598-92-4
February 15, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
John H. Bane, III, pro se.
No brief or argument for appellees.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
John Harvey Bane, III (claimant) contends, inter alia, that the commission erred in finding that he failed to prove that he made a good faith effort to cure his earlier refusal of vocational rehabilitation services. Claimant presents twenty-three questions in this appeal; however, we consider the dispositive issue to be as stated above. Because we agree with claimant that he cured his prior unjustified refusal of vocational rehabilitation services, we reverse the decision of the commission.
The parties are familiar with the facts; therefore, we restate only those facts necessary to explain our decision. Code § 65.2-603(B) provides that an unjustified refusal of the employee to accept vocational rehabilitation services when provided by the employer bars the employee from further compensation until such refusal ceases. "In order for a cure of refusal to be effective it must be made in good faith."James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 490 (1989).
On May 4, 1992, a hearing was held on claimant's application alleging that he cured his earlier unjustified refusal of vocational rehabilitation. The evidence presented at this hearing consisted of claimant's testimony, medical records and the written correspondence between the parties and counsel. The evidence established that on February 15, 1991, claimant contacted employer's counsel and inquired about the steps necessary to reinstate the payments of temporary total disability benefits. At trial, claimant testified regarding his inquiry as follows:
I was asking [employer's counsel] what I should do, what Aetna would like for me to do. I did, I believe state that I was still not of an opinion that this person was qualified to accomplish anything in my case[.] [Her] basic qualifications were quite different in my view than those that were presented and recorded as facts. But at any rate, I said that I would be willing to do that if that's what it took.
In response, employer's counsel indicated that the carrier might wish to retain another rehabilitation firm and that he would contact claimant and advise him of the carrier's intentions. In follow-up letters and phone calls from claimant to employer's counsel, claimant expressed his "desire to do what was necessary to begin receiving compensation benefits again," and his willingness to let the rehabilitation counselor "have an opportunity to show . . . what she can come up with." This evidence was uncontradicted.
The commission, in reversing the deputy commissioner's award, found that:
the claimant's offer to cooperate with the prior rehabilitation counselor was not made in good faith. In so finding, we note that the claimant expressed serious reservations about the qualifications of this rehabilitation counselor. We take judicial notice of the rather extensive record in this case, much of which details the claimant's refusal to cooperate with the same rehabilitation counselor essentially upon the ground that he felt that the qualifications of that person were not sufficient for his purpose. Those same reservations apparently continue, as indicated by his testimony. . . . We also note the claimant's testimony that: ". . . I said that I would be willing to [cooperate] if that's what it took." This testimony, at best, not only indicates continuing reservations about the qualifications of the rehabilitation counselor, but that claimant would cooperate only as a means of having compensation reinstated.
It is well settled that "[o]rdinarily, uncontradicted evidence should be accepted as true and cannot be wholly discredited or disregarded if not opposed to probabilities, even though the witness is an interested party." Molash v. Commonwealth, 3 Va. App. 243, 247, 348 S.E.2d 868, 871 (1986). In this case, we can find no evidence to support the commission's conclusion that claimant's attempt to cure his prior unjustified refusal was not made in good faith. Claimant's possible reservations about the rehabilitation counselor's qualifications is irrelevant. The dispositive issue was whether claimant was willing to cooperate with the rehabilitation personnel offered by employer. See Code § 65.2-603. The fact that claimant had not cooperated in the past and that there was an extensive record proving prior unjustified refusal is not determinative. That matter was fully litigated, and the employer prevailed on that issue by having claimant's benefits suspended. No evidence was offered by employer at the May 4, 1992 hearing that suggests a continuing course of conduct on the part of the claimant of unjustified refusal of vocational rehabilitative services. Further, the commission's finding that "claimant would cooperate only as a means of having compensation reinstated" is inconsequential.
The uncontradicted evidence proves that claimant cured his prior unjustified refusal as of February 15, 1991. Accordingly, we reverse the decision and remand the matter to the commission to enter an appropriate award consistent with this opinion.
Reversed and remanded.