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 
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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.