COURT OF APPEALS OF VIRGINIA
Present: Judges AtLe e, Malveaux and Seni or Judge Annunziata Argued at Fredericksburg, Virginia

FOOD/BEV SERV-CRYSTAL CITY AND HYATT CORPORATION MEMORANDUM OPINION * BY v. Record No. 0215-17-4 JUDGE RICHARD Y. ATLEE, JR. AUGUST 8, 2017 TAHSSIN AL-BOARAB

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Michael S. Bliley (Andrew M. Ale xander; Siciliano, Ellis, Dyer & Boccarosse PLC, on brief), for appellants. Michael Herdman (ChasenBoscol o Injury Lawyers, on brief), for appellee.

Food/Bev Serv-Crystal City and H yatt Corporation (collectively “employer”) asked the Commission to terminate an exis ting award of temporary total di sability benefits, and to credit portions of the award already pai d, alleging that Tahssin Al-Bo arab (“claimant”) “failed to cooperate with vocational rehabi litation efforts.” Following a hearing, the deputy commissioner denied employer’s request. The full Commission then unanimousl y affirmed that decision. Employer now appeals, alleging that the Commission erred when i t determined that claimant 1) “was totally disabled, and was e ntitled to a resumption of temp orary total disability benefits”; and 2) “cooperated with vocational rehabilitation efforts, for the entire duration of his working with his vocational rehabilita tion counselor.” We find no erro r, and affirm the Commission’s decision.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - I. BACKGROUND On appeal of a decision of the Commission, “the evidence and a ll reasonable inferences that may be drawn from that evide nce are viewed in the light mo st favorable to the party prevailing below.” UPS v. P rince, 63 Va. App. 702, 704, 762 S. E.2d 800, 801 (2014) (quoting Snyder v. City of Richmond P olice Dep’t, 62 Va. App. 405, 408, 748 S.E.2d 650, 652 (2013)). “We do not retry the facts befo re the Commission nor do we revi ew the weight, preponderance of the evidence or the credi bility of witnesses.” Bd. of Super visors v. Taylor, 1 Va. App. 425, 431, 339 S.E.2d 565, 568 (1986) (quoting Caskey v. Dan River Mi lls, Inc., 225 Va. 405, 411, 302 S.E.2d 507, 510 (1983)). In 2014, claimant injured his left shoulder while working for employer. Later that year, the Commission entered an agreed award of medical benefits and temporary total disability benefits. In the spring of 2015, c laimant’s treating physician , Dr. Michael Chung, released him to “limited work status.” Claim ant had an appointment to meet with his assigned vocational rehabilitation counselor ( “the counselor”) on June 23, 2015. U nfortunately, his mother’s illness and subsequent death required c laimant to return to Iraq, 1 where he remained for approximately six weeks. By agreement with the counselor, claimant’s first a ppointment was rescheduled, first for August 4, 2015, then for August 11, 2015. Claimant met wit h the counselor on August 11, 2015, the first of eleven meeti ngs during the late summer and f all of 2015. The counselor testified before the deputy com missioner that throughout these meetings, claimant was generally unenthusiastic and unmotivated, i n addition to being late on mo re than one occasion. On August 5, 2015, claimant met again with Dr. Chung. (Claima nt continued to meet with Dr. Chung approximately once a month during the remainder of 2015.) Dr. Chung recommended that claimant undergo a Functional Capacity Evaluat ion (“FCE”) and found that

1 Born and raised in Iraq, claimantarrived in the United States as a refugee in 1994.- 3 - claimant was “not able to retur n to work at this time due to si gnificant decrease in ROM [range of motion] of left shoulder, c hronic pain and reached MMI [maxi mum medical improvement].” Dr. Chung excused claimant fr om work from August 5, 2015 to Sep tember 5, 2015. On September 2, 2015, Dr. Chung opined that there was “[n]o change in patient’s status” and that “[s]ame as before, patient is not a ble to return to work at thi s time due to signifi cant decrease in ROM of left shoulder, chronic pain and reached MMI.” He excuse d claimant from work from September 2, 2015 to October 2, 2015. On September 15, 2015, claimant underw ent the recommended FCE, the stated purpose of which was “to determine [cla imant]’s tolerance to perform wo rk tasks.” The physical therapist who conducted the FCE c oncluded that “[a]ll of [claim ant’s] worker traits were problematic, including Productiv ity (sub-maximal effort, guardi ng and multiple pain behaviors, arrived late to appointment), S afety (poor biomechanics, severe guarding of left arm and leg) and Interpersonal Behavior (non-func tional goal-setting).” She fou nd that claimant “did not demonstrate objective findings to s upport his extensive subject ive complaints and demonstrated level of functional performance . He produced sub-maximal effor t within the Sedentary work level . . . .” The result of the FCE was a recommendation thatclaimant seek full time sedentary work. After seeing claimant on September 30, 2015, Dr. Chung acknowle dged the FCE recommendations, but observed tha t claimant had “[n]o range of motion to left shoulder” and that the muscle strength in his “[l]eft upper extremity was dec reased due to pain.” Dr. Chung recommended a “trial of work hardening program” 2 but observed that “[i]f [claimant] fails work

2 Work Hardening: a highly s tructured, goal-oriented, individualized intervention pr ogram designed to return the patient/client to w ork. Work Hardening programs, which are multidisciplinary in nature, use real or simulated work activit ies designed to restore physical, beh avioral, and vocational functi ons.- 4 - hardening, recommend placement on permanent disability.” On Oc tober 28, 2015, Dr. Chung noted that claimant “did work hardening for 3 hours one day and unable to do further due to increase in left back and lef t shoulder pain.” Dr. Chung concl uded: “[Claimant] was recommended to discontinue work hardening and try work conditio ning program,[ 3 ] 5 days per week for 4 weeks. If [claimant] fails, consider permanent disa bility, MMI.” Dr. Chung excused claimant from work from October 28, 2015 to November 28, 2015. After seeing claimant on November 25, 2015, Dr. Chung noted tha t claimant had not starte d the work conditioning program and that he “complains of left shoulder pain, severely limited ROM and lower back pain.” He recommended that clai mant follow up with the work co nditioning program, and excused claimant from work f rom November 30, 2015 through Janua ry 1, 2016. At Dr. Chung’s deposition in February of 2016, claimant’s atto rney asked Dr. Chung: “[S]ince you saw [claimant] on September 2 nd [, 2015] when you indicate that the range of motion of the left shoulder had gotten worse, until now, you’ve never indicated to him that he

Work Hardening addresses the issues of productivity, safety, physical tolerances, a nd worker behaviors. American Physical Therapy Asso ciation, Orthopaed ic Section, Adv anced Work Rehabilitation Guidelines 3 (adopted July 11, 2011) (italics omitted) (www.orthopt.org/uploads/content_ files/OHSIG_Guidelines/Work_Re hab_Guideline_Final_Dra ft_4_1_11.pdf).

3 Work Conditioning: an intensi ve, work-related, goal-oriented conditioning program designed speci fically to restore systemic neuromusculoskeletal functions ( e.g., joint integrity and mobil ity, muscle performance (including strength, power, and endurance), motor function (motor control and motor learning), range of motion (including muscle length)[) ], and cardiovascular/pulmona ry functions (e.g. aerobic capac ity/endurance, circulation, and ventilation and respiration/gas e xchange). The objective of th e work conditioning program is to r estore physical capacity and function to enable the patien t/client to return to work. Id.- 5 - can return to work, correct, sin ce September?” Dr. Chung confi rmed that this was accurate. In its opinion affirming the decisi on of the deputy commissioner, the Commission found: the claimant met his burden of pr oving that he was totally disabled from August 5, 2015 through September 29, 2015 and from October 28, 2015 through the pres ent and continuing. At this t ime, we find Dr. Chung was in the best position to evaluate the claimant’s ability to work, a nd we rely upon his opinion that t he claimant was totally incapab le of work based upon his assessmen t of the severe limitations shown i n the claimant’s FCEs. There is no physician opinion in the record t o the contrary. As a resul t, . . . the claimant did not have a n obligation to work with voca tional rehabilitation from Au gust 5, 2015 through September 29, 2015 and from October 28, 2015 through t he present and continuing. Al-Boarab v. Food/Bev Serv-Crysta l City and Hyatt Corp., JCN VA 00000896222, 2017 VA Wrk. Comp. LEXIS 8, at *8 ( Va. Wrk. Comp. Jan. 3, 2017). Em ployer then appealed.
II. ANALYSIS A claimant before the Commissi on “must prove his case by a prep onderance of the evidence.” Pro-Football Inc. v. Paul, 39 Va. App. 1, 10, 569 S .E.2d 66, 71 (2002) (quoting Bergmann v. L & W Drywall, 222 Va. 30, 32, 278 S.E.2d 801, 802 (1981)). Furthermore, “decisions of th e [C]ommission as to questions of fact, if supported by credible ev idence, are conclusive and binding on this Court.” Allen & Rocks, Inc. v. Briggs, 28 Va. App. 662, 672, 508 S.E.2d 335, 340 (1998). Evidence to the contrary in the reco rd “is of no consequence if there is credib le evidence to support the [C]o mmission’s findings.” Russell Loungewear v. Gray, 2 Va. App. 90, 95, 341 S.E.2d 824, 826 (1986). The consideration and wei ght to be given to the eviden ce, including medical evidence, are within the sound discretion of the [C]ommission. Id. at 10-11, 569 S.E.2d at 71. A. Was Claimant Totally Disabled? Employer first challenges the fi nding that claimant “was total ly disabled, and was entitled to a presumption of temporary tot al disability benefits.” In s upport of its position on appeal, employer asserts that “Dr. C hung improperly acted in removing [ claimant] from work.”- 6 - Appellants’ Br. at 8. Further, a rgues employer, Dr. Chung’s “c onclusion that [claimant] was unable to work is outweighed by the two Functional Capacity Eva luations.[ 4 ]” Id. We disagree. Although the physical therapist w ho conducted the FCE in Septe mber of 2015 believed claimant to be capable of se dentary work, Dr. Chung, a physicia n, saw claimant much more frequently. We agree with the Commission that “Dr. Chung was i n the best position to evaluate the claimant’s ability to wo rk, and we rely upon his opinion th at the claimant was totally incapable of work.” Al-Boar ab, 2017 VA Wrk. Comp. LEXIS 8, at *8. As the Commission correctly pointed out, “[t]her e is no physician opinion in the record to the contrary.” Id. When we assess the Commission’s conc lusion, “[e]vidence to the contr ary in the record ‘is of no consequence if there is credible evidence to support the [C]omm ission’s findings.’” Pro-Football Inc., 39 Va. App. at 10, 569 S.E.2d a t 71 (quoting Russell Loun gewear, 2 Va. App. at 95, 341 S.E.2d at 826). As such, we agree that claimant was totally di sabled. B. Did Claimant Unjustifiably Refuse to Cooperate with the Counselor? The Virginia Workers’ Compensat ion Act requires an employer to furnish an injured employee with “reasonable and ne cessary vocational rehabilitati on services.” Code § 65.2-603(A)(3). The injured empl oyee, in turn, is required t o accept such services. Any unjustified refusal to do so “shal l bar the employee from furth er compensation until such refusal ceases and no compensation shall at any time be paid for the pe riod of suspension unless, in the opinion of the Commission, the circu mstances justified the refu sal.” Code § 65.2-603(B). This

4 In its deposition of Dr. Chung, in i ts written statement to th e Commission, and in its brief, employer references tw o FCEs: one conducted in Septembe r of 2015 and another conducted in December of 2015. Because the only FCE included i n the appendix is the September 2015 FCE, we consider o nly that FCE in our analysis. See Rule 5A:25(h) (noting that, although we may “consider o ther parts of the record,” we “assume[] that the appendix contains everything germane t o the assignments of error”).- 7 - is so because “a person receiving workers’ compensation has a d uty to cooperate in efforts to get him a job he is capable of pe rforming.” Johnson v. Clifton For ge, 9 Va. App. 376, 377, 388 S.E.2d 654, 655 (1990). “Whether the employee unjustifiably ha s refused to cooperate with vocational rehabilitation serv ices is a question of fact to be determined from the totality of the evidence.” Anderson v. Anderson, 65 Va. App. 354, 362, 778 S.E .2d 132, 136 (2015). We will analyze claimant’s cooperation with the counselor duri ng two distinct periods. First, we will look at the period from June 23, 2015 to August 5, 2015. Next, we will examine the period after August 5, 2015. We conduct this two-stage ana lysis because before August 5, 2015, Dr. Chung had cleared claimant to work with certain limit ations. From August 5, 2015 onward, Dr. Chung declared claimant totally disabled. 1. June 23, 2015 to August 5, 2015 Initially scheduled to meet with the counselor on June 23, 201 5, claimant rescheduled this meeting. He did not meet with the counselor until August 11, 2015. At the time claimant was first scheduled to meet w ith the counselor, Dr. Chung had c leared him for “limited work status.” The cause for this de lay was claimant’s travel to Ira q as a result of the death of his mother. The Commission found that [g]iven the evidence that the i nitial meeting was voluntarily rescheduled by the parties pr ior to the original June 23, 2015 meeting date, and the claimant attended this rescheduled meetin g, we do not find the circumstances su fficient to show the claiman t unjustifiably failed to cooperate with vocational rehabilitatio n efforts prior to August 5, 2015. Al-Boarab, 2017 VA Wrk. Comp. L EXIS 8, at *7. This finding is supported by credible evidence, and is thus binding on this Court. 2. After August 5, 2015 After August 5, 2015, claimant was totally disabled, per Dr. C hung. We find that credible evidence supported thi s finding. See supra, Part II.A . The parties and the Commission- 8 - agree that total disability obviates the need to comply with vo cational rehabilitation. See Appellants’ Br. at 7 (“If Appe llee was properly within total di sability status, then he was justified in refusing to accept vocationa l rehabilitation.”); Appellee’s Br. at 5 (asserting that injured workers are “not obligated to perf orm vocational rehabilitationuntil they are medically released to return to selective employm ent” (citing Gardner v. Legum Hom e Health/Home I.V. Care and Nutritional Serv., 74 O.W.C. 97 ( 1995)); Al-Boarab, 2017 VA Wrk . Comp. LEXIS 8, at *8 (observing that claimant “di d not have an obligation to work wi th vocational rehabilitation” counselor during periods of tot al disability); cf. Ilg v. UPS, Inc., 284 Va. 294, 304, 726 S.E.2d 21, 27 (2012) (holding that “the Cour t of Appeals erred in dete rmining that [the injured worker] was precluded from asserting th at his refusal of vocational reh abilitation was justified because he remained fully disabled by his hand injury related to the indus trial accident for which he was receiving benefits for his compensable knee injury”). Notwithstanding claimant’s tota l disability after August 5, 201 5, he still met with the counselor eleven times over the course of approximately three m onths. The Commission found that claimant did not unjustifia bly refuse to cooperate with hi s counselor after August 5, 2015. Viewing the evidence in its totality, we find that evidence cre dible. As such, the Commission’s finding is “conclusive and binding on this Court.” Pro-Footbal l Inc., 39 Va. App. at 10, 569 S.E.2d at 71 (quoting Allen & Rocks, Inc., 28 Va. App. at 672, 508 S.E.2d at 340).
III. CONCLUSION For the preceding reasons, we affi rm the Commission’s decision

. Affirmed.