COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

ROBERT DOUGLAS CLARK 

v. Record No. 1001-96-2 MEMORANDUM OPINION*

 PER CURIAM 

FLUOR DANIELS/FLUOR CORPORATION OCTOBER 8, 1996 

AND 

UNITED STATES FIDELITY AND 

 GUARANTY COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Walter C. Whitt, Jr., on brief), for 

appellant. 

 (Gary L. Denton; Denton & Drash, on brief), 

for appellees. 

 Robert Douglas Clark contends that the Workers' Compensation 

Commission erred in (1) failing to consider as after-discovered 

evidence Dr. Hallett H. Mathews' December 18, 1995 medical report 

and Dr. Harold Young's February 6, 1996 and March 6, 1996 medical 

reports; (2) terminating Clark's compensation benefits on the 

ground that he failed to cooperate with vocational rehabilitation 

services by acting in a rude and inappropriate manner during a 

May 15, 1995 job interview; and (3) finding that the duties of 

the job, which was the subject of the May 15, 1995 interview, 

fell within his physical restrictions. Upon reviewing the record 

and the briefs of the parties, we conclude that this appeal is 

without merit. Accordingly, we summarily affirm the commission's 

 

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

designated for publication. 
 2 

decision. Rule 5A:27. 

I. 

 In Williams v. People's Life Ins. Co., 19 Va. App. 530, 452 

S.E.2d 881 (1995), this Court held as follows: 

 The four requirements which must be met 

before the record will be reopened on the 

basis of after-discovered evidence are that: 

 (1) the evidence was obtained after the 

hearing; (2) it could not have been obtained 

prior to the hearing through the exercise of 

reasonable diligence; (3) it is not merely 

cumulative, corroborative or collateral; and 

(4) it is material and should produce an 

opposite result before the commission. 

Id. at 532, 452 S.E.2d at 883. 

 The commission did not consider Dr. Mathews' December 18, 

1995 medical report or Dr. Young's February 6, 1996 and March 6, 

1996 medical reports as after-discovered evidence. As the 

proponent of this issue, Clark bore the burden of proving that 

these medical reports could not have been obtained before the 

September 20, 1995 hearing. 

 Clark suffered a compensable injury by accident to his back 

on May 2, 1989. Dr. Young, a neurosurgeon, began treating Clark 

in August 1991. Dr. Mathews began treating Clark in July 1995, 

and recommended that Clark undergo additional surgery. Yet, 

Clark offered no evidence to the commission to explain why he 

could not have obtained Dr. Mathews' opinion regarding causation 

and Dr. Young's opinions before the September 20, 1995 hearing. 

Indeed, the record indicates that the deputy commissioner left 

the record open until October 4, 1995 for either party to submit 
 3 

additional medical designations. Clark did not submit any 

additional medical designations prior to October 4, 1995. 

Because Clark failed to meet his burden of proving that these 

medical records could not have been obtained through the exercise 

of reasonable diligence, we cannot find that the commission erred 

in failing to consider these medical reports as after-discovered 

evidence. 

II. and III. 

 "[W]hen an employee's conduct at a job interview is 

unreasonable and calculated to prevent an actual offer of 

employment, . . . such conduct is tantamount to an unjustified 

refusal of employment. In such a case, compensation may be 

denied assuming the job was suitable to the employee's work 

capacity." Johnson v. City of Clifton Forge, 9 Va. App. 376, 

378, 388 S.E.2d 654, 655 (1990) (en banc). 

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

to the prevailing party below. R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). So 

viewed, the evidence established that on January 16, 1995, Dr. 

Mark Ross, who performed a functional capabilities evaluation on 

Clark, opined that Clark could return to full-duty work, eight 

hours per day. Dr. Ross placed no restrictions on Clark's 

ability to sit, stand, walk or climb stairs, other than to 

indicate that Clark should be permitted to alternate sitting and 

standing. Dr. Ross also noted that Clark had no difficulties 
 4 

with hand or foot movements. Dr. Ross did not place any 

restrictions upon Clark's ability to drive. 

 Barbara Lowery, a senior rehabilitation specialist assigned 

to assist Clark with vocational placement in early 1995, 

testified that she scheduled a job interview for Clark with Jake 

Legare, owner of Wheel Services, Inc. The job would have 

required Clark to drive Social Security and Medicare patients to 

and from their doctors' appointments during the daytime hours. 

 Lowery was present on May 15, 1995 during the interview. 

She and Legare continually asked Clark to stop interrupting 

Legare as he attempted to tell Clark about the job. Clark 

interrupted Legare to state that although he had zero points on 

his DMV record, he had obtained speeding convictions and his 

insurance premiums were high. Clark also interrupted Legare to 

say that he experienced back problems the previous week and that 

when he woke each morning he never knew whether he would be able 

to do anything that day. During the interview, Clark appeared 

bored, drummed his fingers on the table, turned away from Legare, 

and shuffled papers. When Legare offered the job to Clark, Clark 

stated, "Well, I have to take the job by law." 

 Legare told Clark that the patients he would be required to 

pick up lived in a lower income area of Newport News. Clark 

responded that "white people don't go to those kinds of areas," 

that "those people lived there," and that he wouldn't go there. 

Legare assured Lowery and Clark that he had not had any 
 5 

safety-related incidents with his drivers. When Clark started to 

draw a map outlining "black areas," Legare ended the interview 

and stated that it appeared that Clark did not want to have a 

job. When Clark persisted by asking Legare if he had any white 

drivers on his staff, Legare repeated that the interview was 

over. 

 Lowery then gave Legare a standard follow-up interview form 

to complete. As Legare completed the form, Clark went behind him 

and started reading over his shoulders. Clark then began yelling 

"This is a set up, you're just trying to get my benefits taken 

from me. This is all planned." Lowery and Legare asked Clark to 

leave the office several times. Finally, Clark stormed out of 

the office and slammed the door. 

 Clark testified that at the beginning of the interview 

Legare stated that he preferred to hire ex-military personnel 

because they were reliable. Clark stated that he felt defensive 

as a result of this comment, but he denied acting rude during the 

interview. Clark claimed that he became angry only after Legare 

called him a racist. Clark admitted that he expressed 

reservations about going into certain areas of Newport News, 

which he considered high crime areas. He also admitted that he 

informed Legare that if he completed the follow-up interview 

form, Clark's benefits would be terminated. Clark admitted 

telling Legare that the interview was a "set up," and he admitted 

that he became upset and left the office. 
 6 

 As fact finder, the commission was entitled to accept 

Lowery's testimony regarding Clark's behavior during the 

interview and to reject Clark's testimony concerning the 

interview. The determination of a witness' credibility is within 

the fact finder's exclusive purview. Goodyear Tire & Rubber Co. 

v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987). 

Lowery's testimony constitutes credible evidence to support the 

commission's finding that Clark's conduct during the interview 

was calculated to prevent the offer of employment and amounted to 

a refusal to cooperate with vocational rehabilitation services. 

Dr. Ross' opinions constitute credible evidence to support the 

commission's finding that the driver's job fell within Clark's 

restrictions. "The fact that there is contrary evidence in the 

record is of no consequence if there is credible evidence to 

support the commission's finding." Wagner Enters., Inc. v. 

Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). 

 For the reasons stated, we affirm the commission's decision. 

 Affirmed.