Patrick F. Moran v R&W Construction, Inc., et al.

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.