COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bray and Senior Judge Hodges 

Argued by Teleconference 

FAIRFAX COUNTY SCHOOL BOARD 

 MEMORANDUM OPINION* BY 

v. Record No. 1903-96-4 JUDGE JERE M. H. WILLIS, JR. 

 APRIL 15, 1997 

LONNIE M. WRIGHT 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Michael N. Salveson (Hunton & Williams, on 

briefs), for appellant. 

 Robert O. Goff for appellee. 

 On appeal from a decision of the Workers' Compensation 

Commission reinstating benefits to Lonnie M. Wright, Fairfax 

County School Board (Fairfax) contends that the commission erred 

in determining that employment leads and other vocational 

assistance offered to Wright did not constitute "vocational 

rehabilitation efforts," the refusal of which would justify 

suspension of compensation. We reverse and remand. 

 The commission's decision was based upon Code § 65.2-603 

which provides in relevant part that: 

 A. 3. The employer shall also furnish . . . 

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, and shall be provided by a 

certified rehabilitation provider . . . . 

Such services shall take into account the 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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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. 

 B. The unjustified refusal of the employee 

to accept such . . . vocational 

rehabilitation services when provided by 

the employer shall bar the employee from 

further compensation until such refusal 

ceases . . . . 

 I. 

 Fairfax employed Wright as a delivery truck driver for over 

twenty years. On April 22, 1991, Wright injured his back while 

working. Following surgery in July, 1991, he returned to work 

but re-injured his back. Fairfax accepted Wright's claim, and 

provided him compensation pursuant to an award for temporary 

total disability. 

 On February 14, 1995, Dr. Stephen Sirota examined Wright. 

He reported that Wright opposed lumbar epidural injections or 

further surgery. Dr. Sirota stated that: "Unfortunately, in his 

present condition I do not feel that he can do any meaningful 

physical labor and probably would not be able to tolerate even a 

full time sedentary job." 

 On April 6, 1995, Dr. Ronald Childs released Wright to work 

four hours per day for one month, followed by full time sedentary 

work with no lifting over twenty pounds. On April 27, 1995, Dr. 

Sirota released Wright for "light sedentary work," under the same 

conditions set by Dr. Childs. 

 On July 28, 1995, Dr. Sirota reported that Wright slept with 
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difficulty, could sit for only fifteen minutes, and could walk 

only one or two blocks. 

 On August 14, 1995, Dr. Katherine Maurath examined Wright 

and reported that he was "unable to do any physical work at this 

time." Dr. Maurath concluded that: 

 4. Given his inability to read and physical 

disability, I would recommend that this 

patient be considered for retirement on 

medical disability. He is unable to do the 

job for which he was hired and cannot, in his 

current state, be replaced in a sedentary 

position because of his inability to read. 

 On November 27, 1995, Dr. Thomas Schuler released Wright to 

work four hours per day, with one hour standing, one hour 

walking, and two hours sitting. He restricted Wright from 

lifting more than fifteen pounds, bending, climbing, kneeling, 

twisting, squatting, pushing, or pulling. On December 20, 1995, 

Dr. Schuler noted that Wright was "still having pain." 

 On January 19, 1996, Dr. Maurath reexamined Wright and 

imposed the following restrictions: 

 1. Sedentary work is recommended for this 

patient with frequent allowance for position 

changes. He should not lift any object 

heavier than 2 lbs. He is not permitted to 

bend. Essentially, he is restricted to 

sedentary work, however, the patient is 

functionally illiterate, so any work 

involving written or reading materials is not 

possible for him. It would appear to me that 

he is permanently and totally disabled 

secondary to a combination of his lumbar 

pathology and his limited educational level 

and reading skills. 

Dr. Maurath based her opinion concerning Wright's literacy upon 
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his eighth grade level of education, discussions with Mr. and 

Mrs. Wright, and her "extensive experience with work related 

rehabilitation efforts" as a physiatrist. 

 II. 

 In February, 1995, Maria Raimundi, a case manager for CRA 

Managed Care, Inc., began trying to help Wright find suitable 

employment. She met with Drs. Childs and Sirota to determine 

Wright's physical abilities, and later received a physical 

capacity evaluation form from Dr. Schuler. Ms. Raimundi stated 

that she did not review Dr. Maurath's reports. 

 Starting in June, 1995, Ms. Raimundi met weekly with Wright. 

 She referred to the Dictionary of Occupational Titles to 

determine what jobs were suitable for him and presented him with 

a list of approximately ninety leads. This list consisted 

primarily of driver/delivery jobs. She testified that Wright 

applied to two jobs only because he felt that he was incapable of 

meeting the physical and intellectual requirements. Ms. Raimundi 

neither contacted the proposed employers regarding the specific 

requirements of the positions, nor provided Wright's physicians 

with job descriptions. 

 Ms. Raimundi testified that she was unable to obtain an 

objective appraisal of Wright's literacy, but was aware that he 

had completed the eighth grade. She offered to assist him in 

filling out applications and provided him with information 

regarding continuing his education. 
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 III. 

 Fairfax contends that the commission erred in refusing to 

suspend Wright's benefits because he failed to cooperate with 

vocational rehabilitation efforts, pursuant to Code § 65.2-603. 

Fairfax argues that the "reasonableness and necessity" of the 

vocational rehabilitation services provided to Wright raises a 

mixed question of law and fact, and that we should review the 

commission's opinion de novo. Cf. City of Salem v. Colegrove, 

228 Va. 290, 293, 321 S.E.2d 654, 656 (1984). This argument is 

without merit. No doubt, the employer's job placement program 

constitutes "reasonable and necessary" vocational rehabilitation 

efforts under Code § 65.2-603. However, that is not the issue 

before us. Rather, the question presented here is whether 

credible evidence in the record supports the commission's finding 

that the employer failed to establish that Wright unjustifiably 

refused vocational rehabilitation services. 

 On appeal, we view the evidence in the light most favorable 

to the party prevailing below. Crisp v. Brown's Tysons Corner 

Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 196, 196 (1986). 

The findings of the commission, if based upon credible evidence, 

are conclusive and binding on this Court. Morris v. Badger 

Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 

877 (1986). 

 First, we reject Wright's assertion that no vocational 

rehabilitation services were provided. Code § 65.2-603 requires 
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that vocational rehabilitation services "shall be provided by a 

certified rehabilitation provider." See Code §§ 54.1-3510 et

seq. (governing certification of rehabilitation providers). 

Wright contends that because the record does not establish that 

Ms. Raimundi was certified, he did not receive "vocational 

rehabilitation services." This issue was not presented to the 

commission. Therefore, we will not consider it for the first 

time on appeal. Rule 5A:18. 

 Second, Fairfax contends that it provided Wright numerous 

job leads that were clearly within his physical and mental 

capabilities, and that he unjustifiably refused to pursue new 

employment. The commission held that Wright's failure to pursue 

the job leads did not justify suspending his benefits because the 

rehabilitation consultant had failed "to directly contact 

employers to determine whether the claimant's physical 

restrictions or illiteracy would be obstacles to his performance 

of these jobs." 

 An employer who contends that a claimant has failed to 

cooperate with job placement services bears the initial burden of 

proving that the job leads provided were appropriate to the 

claimant's residual capacity. Thus, where prior medical approval 

is not secured for a prospective job, the employer must 

demonstrate that the job "obviously" fits within the limitations 

provided by the claimant's physician. See Talley v. Goodwin 

Brothers, 224 Va. 48, 52, 294 S.E.2d 818, 820-21 (1982). 
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 Consultation with a claimant's physicians, review of past 

job experience and education, and consideration of the claimant's 

mental and physical capabilities are all essential to securing 

employment. Code § 65.2-603 seeks relief for the employer from 

the payment of benefits and of the claimant's successful reentry 

into the work force as a productive member of society. See

Colegrove, 228 Va. at 294, 321 S.E.2d at 656. 

 These twin goals are underscored by a balancing of 

interests. The employer's justified desire for the claimant's 

reemployment and the health, welfare and dignity of a claimant 

remain equally important. Prior medical approval, detailed job 

descriptions specifying the mental and physical requirements of a 

position, and direct contact with prospective employers to 

confirm the availability of jobs and their suitability to the 

individual claimant constitute acceptable methods by which a 

vocational consultant may purge inappropriate job leads. This 

enables the claimant to avoid futile pursuit of unsuitable 

employment and prevents lengthening of the period in which the 

employer remains liable to the claimant for benefits. 

 In this case, the vocational consultant neither obtained 

medical approval for the job leads, nor contacted the prospective 

employers to determine their expectations of an employee. 

Moreover, she did not furnish Wright with descriptions of the job 

performance requirements. While many of the positions appeared 

similar to Mr. Wright's previously held job, the lack of 
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meaningful information in the record regarding the physical and 

mental requirements for the positions renders us unable to 

conclude that the jobs were "obviously" compatible with Wright's 

severe physical restrictions. 

 Fairfax argues that because it made job leads available to 

Wright and he failed to pursue them, he must prove that his 

failure to pursue the leads was justified. That analysis does 

not apply here. See Ellerson v. W.O. Grubb Steel Erection Co., 1 

Va. App. 97, 98, 335 S.E.2d 379, 380 (1985). An employer 

contending that a claimant unjustifiably refused job placement 

efforts must prove that the job leads were bona fide. Bona fide

job leads consist of available employment positions reasonably 

compatible with the claimant's capacities. As we noted above, it 

is not obvious that the job leads were bona fide. Thus, the 

commission's findings were supported by credible evidence. 

 Third, Fairfax contends that Wright unjustifiably failed to 

cooperate with efforts to evaluate and, if necessary, to improve 

his level of education. Code § 65.2-603 rests upon a bedrock of 

cooperation, and a claimant must cooperate with reasonable and 

necessary efforts designed to achieve reemployment. Johnson v. 

City of Clifton Forge, 9 Va. App. 376, 377, 388 S.E.2d 654, 655 

(1990). Thus, concomitant with an employer's obligation to give 

assistance, stands the claimant's obligation to accept it. 

 Ms. Raimundi testified that Wright refused to attempt 

remedial education and refused to be tested to determine his 
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suitability for such a remedial effort. She testified that she 

suggested GED training, and that Wright told her that he was not 

interested. She said she sought to have him tested to determine 

his suitability for remedial education, but he refused to take 

the test. Justifying his refusal, Wright said: 

 But I told her what is the use of me going to 

try to do that when I know myself my 

capabilities . . . what I could learn and 

what I can't learn. I'm 43 years old, and I 

been in, you know, 43 years old, and I 

haven't learned nothing yet. And I have my 

sisters and stuff. They try to help me and 

stuff. I already been through that. It's 

embarrassing, but . . . . 

 The commission found that: 

 At age 43, the claimant is certainly a 

candidate for vocational rehabilitation, and 

if illiteracy is an obstacle then this area 

should be addressed. However, we do not find 

that the vocational rehabilitation efforts in 

this case meet the Commission's criteria for 

suspending benefits. 

 Cooperation suggests working with another for a common 

purpose. Conversely, a failure to cooperate necessarily implies 

a refusal to work with another toward achieving the established 

goal. The record establishes without question that Wright 

refused to make even a minimal effort toward investigating his 

suitability for remedial education and, through education, 

vocational rehabilitation. Thus, the commission erred in finding 

that Fairfax had failed to prove that Wright unjustifiably 

refused reasonable vocational rehabilitation efforts. 

 The judgment of the commission is reversed, and this case is 
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remanded to it for entry of an order suspending benefits so long 

as Wright continues without justification to reject reasonable 

vocational rehabilitation efforts. 

 Reversed and remanded.