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. 
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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 
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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.