COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

JOHN D. LUCEY & SON PLUMBING 

AND 

POTOMAC INSURANCE COMPANY OF ILLINOIS 

 MEMORANDUM OPINION*

v. Record No. 1003-98-1 PER CURIAM 

 SEPTEMBER 8, 1998 

RONALD TATEM 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Bradford C. Jacob; Taylor & Walker, on 

brief), for appellants. 

 (Kevin L. Hubbard, on brief), for appellee. 

 John D. Lucey & Son Plumbing and its insurer (hereinafter 

referred to as "employer") contend that the Workers' Compensation 

Commission ("commission) erred in finding that (1) a de facto

award existed; (2) Ronald Tatem's ongoing disability was causally 

related to his October 27, 1995 injury by accident; (3) Tatem did 

not unjustifiably refuse selective employment; and (4) employer 

was responsible for the cost of medical treatment related to 

Tatem's psoriatic condition. Employer also contends that the 

commission erred in considering Dr. Richard T. Holden's June 2, 

1997 medical report as evidence. 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 

decision. See Rule 5A:27. 

 

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

designated for publication. 
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 I. De Facto Award

 The commission ruled that a de facto award existed, 

obviating the need for Tatem to prove that he reasonably marketed 

his residual skills or that his disability was causally related 

to his compensable injury by accident. As a result, the 

commission placed the burden on employer to prove that Tatem's 

on-going disability was not causally related to his compensable 

industrial injury. In so ruling, the commission found the 

following: 

 We decline to establish a bright line 

test for determining how many weeks of 

voluntary payments are enough for a de facto

award. Here, the employer not only paid 

benefits for about twenty weeks but hired a 

vocational rehabilitation provider to help 

locate work and did not contest the 

compensability of the claim at the 

hearing. . . . [T]here is no evidence that 

[Tatem] declined to sign any agreements. 

 When we consider all of the employer's 

actions, we agree with the Deputy 

Commissioner that is was reasonable to infer 

that the parties had reached an agreement as 

to the payment of compensation. 

 The record amply supports the commission's findings that 

employer voluntarily paid benefits to Tatem, did not contest the 

compensability of the claim at the hearing, and hired a 

rehabilitation counselor to help Tatem find work. Pursuant to 

our holding in National Linen Serv. v. McGuinn, 5 Va. App. 265, 

268-71, 362 S.E.2d 187, 188-90 (1987) (en banc), and under the 

circumstances of this case, we cannot say that the commission 

erred in ruling that a de facto award existed and in allocating 
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the burden of proof to employer. 

 II. Disability

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

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

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

Unless we can say as a matter of law that employer's evidence 

sustained its burden of proof, the commission's findings are 

binding and conclusive upon us. See Tomko v. Michael's 

Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). 

 In ruling that employer failed to prove that Tatem's ongoing 

disability was not causally related to his compensable accident, 

the commission found as follows: 

 Dr. Holden believes that [Tatem's] 

psoriatic arthritis was a significant reason 

for his disability but also believes that the 

claimant had nerve damage from a fragment of 

a ruptured disc and that the psoriatic 

arthritis caused an inflammatory process. In 

his most recent report of June 2, 1997, Dr. 

Holden again expressed his inability to 

determine the exact cause or causes of 

[Tatem's] continuing disability. He stated 

[Tatem's] psoriatic arthritis "[m]ust be put 

under control before any further (orthopedic) 

evaluations can be done." 

 Dr. Holden is unable to render an 

opinion as to the cause of [Tatem's] 

continuing problems and has not excluded 

[Tatem's] industrial accident as a cause. 

The principle is well established that full 

benefits are allowed where a disability has 

two causes, one related to the employment and 

one unrelated. 

 Based upon Dr. Holden's expressed inability to determine the 

extent to which Tatem's industrial accident contributed to his 
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ongoing disability and the lack of any medical opinion ruling out 

the industrial accident as a cause of Tatem's continuing 

disability, the commission could reasonably infer that Tatem's 

disability had two possible causes, one-work related and one 

non-work-related. Applying the "two-causes" rule, the commission 

did not err in awarding Tatem continuing disability benefits. 

See Shelton v. Ennis Business Forms, Inc., 1 Va. App. 53, 55, 334 

S.E.2d 297, 299 (1985). Accordingly, we cannot find that 

employer's evidence sustained its burden of proving that Tatem's 

disability was not causally related to his compensable injury by 

accident. 

 III. Unjustified Refusal of Selective Employment

 "To support a finding of refusal of selective employment 

'the record must disclose (1) a bona fide job offer suitable to 

the employee's capacity; (2) [a job offer that was] procured for 

the employee by the employer; and (3) an unjustified refusal by 

the employee to accept the job.'" James v. Capitol Steel Constr. 

Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 489 (1989) (quoting 

Ellerson v. W.O. Grubb Steel Erection Co., 1 Va. App. 97, 98, 335 

S.E.2d 379, 380 (1985)). 

 In affirming the deputy commissioner's decision that Tatem's 

conduct at his job interview did not sabotage the possibility of 

employment as a janitor with Community Alternatives, the 

commission found as follows: 

 According to [Tatem's] testimony, he 

told the prospective employer that he had 

reservations about whether he could perform 
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the duties. [Tatem] testified "I told them I 

wasn't sure if I could do that, I would try. 

 I would try the best I could." 

 [Tatem's] testimony is substantially 

corroborated by the testimony of the 

vocational rehabilitation counselor who was 

advised by the prospective employer that 

[Tatem] "[s]tated that he wasn't sure if he 

was able to do the job." The prospective 

employer did not offer the job to [Tatem] 

because they could not hire someone "[i]f 

they don't feel that they can do the job." 

 [Tatem] expressed his concern, 

admittedly subjective, about his ability to 

perform the job. Most importantly, he also 

stated his willingness to try. 

 Just one month before this job 

interview, on September 3, 1996, Dr. Holden 

reported that [Tatem] could perform a 

sedentary job on "a trial basis," that 

[Tatem] would experience pain if he sat or 

stood too long and that he needed to 

alternate sitting and standing every fifteen 

to twenty minutes. We find [Tatem] 

reasonably expressed concern about his 

ability to perform a job, which, as described 

in the job description, required him to stand 

for three hours and sit for less than one. 

 Those findings are supported by Tatem's testimony, which was 

corroborated by the vocational rehabilitation counselor, and the 

commission's resolution of the conflict between the 

standing/sitting requirements stated in the job description and 

Dr. Holden's September 3, 1996 trial release to sedentary 

employment with alternate standing and sitting every fifteen 

minutes. Thus, we cannot find that Tatem's conduct at the job 

interview was unreasonable and calculated to prevent an actual 

offer of employment. See Johnson v. City of Clifton Forge, 9 Va. 

App. 376, 378, 388 S.E.2d 654, 655 (1990) (en banc). 

Accordingly, the commission did not err in finding that Tatem's 
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conduct did not constitute an unjustified refusal of selective 

employment with Community Alternatives. 

 We also hold that the commission did not err in finding that 

Tatem did not unjustifiably refuse or sabotage a position with 

White's Nursery and Greenhouse, Inc. ("White's") as a greenhouse 

production worker. Employer speculated that information 

contained on Tatem's job application regarding his inability to 

lift over forty-five pounds caused White's not to grant Tatem an 

interview or offer him a job. However, no evidence proved why 

White's did not grant Tatem an interview or offer him a job. 

Rather, the evidence established that Tatem, who cannot read or 

write, received assistance from the vocational rehabilitation 

counselor and/or family members in completing the application. 

No evidence proved who wrote the statements regarding Tatem's 

lifting ability on the job application. Moreover, the 

rehabilitation counselor admitted that the job with White's did 

not require lifting more than twenty-five to thirty pounds. 

 Thus, the evidence failed to establish that the commission 

erred in ruling that Tatem did not unjustifiably refuse selective 

employment with White's. 

 IV. Psoriatic Condition/Causation

 Based upon Dr. Holden's June 2, 1997 medical report, the 

commission could reasonably infer that treatment of Tatem's 

psoriatic arthritis condition was a medically necessary component 

of the successful and complete evaluation of the orthopedic 
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problems caused by Tatem's compensable injury by accident. In 

light of these circumstances and our holding in Papco Oil Co. v. 

Farr, 26 Va. App. 66, 74, 492 S.E.2d 858, 862 (1997), we cannot 

say that the commission erred in holding employer responsible for 

the cost of medical treatment necessary to bring Tatem's 

pre-existing psoriatic arthritis condition under control in order 

to treat his work-related condition. 

 V. Dr. Holden's June 2, 1997 Medical Report

 Page forty-nine of the transcript of the June 10, 1997 

hearing reflects that the deputy commissioner left the record 

open for fourteen days, without objection from employer, to allow 

Tatem to designate Dr. Holden's June 2, 1997 medical report as 

part of the record. Thus, although the commission's opinion 

incorrectly cited to page forty-seven of the transcript, the 

commission correctly found that the deputy commissioner left the 

record open for Tatem to file the report. 

 The record shows that Tatem filed Dr. Holden's June 2, 1997 

report with the commission on June 10, 1997, before the 

fourteen-day period expired. Accordingly, the commission did not 

err in considering that report in rendering its decision. 

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

 Affirmed.