Johnson v. City of Clifton Forge

Citations: 375 S.E.2d 540; 7 Va. App. 538; 5 Va. Law Rep. 1317; 1989 Va. App. LEXIS 2Docket: Record No. 0839-87-3

Court: Court of Appeals of Virginia; January 3, 1989; Virginia; State Appellate Court

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In the case of Willie H. Johnson v. City of Clifton Forge and The Travelers Insurance Company, the Virginia Court of Appeals addressed two primary issues related to a workers' compensation appeal. First, it examined whether the appellant's failure to timely mail a copy of the notice of appeal to the appellees' counsel constituted a jurisdictional defect requiring dismissal. The Industrial Commission had denied benefits to Johnson, and his counsel filed a notice of appeal, but did not promptly provide a copy to the appellees' counsel. The appellees argued that this procedural oversight was fatal to the appeal's perfection.

The Court noted that adherence to procedural rules is crucial for the orderly administration of justice, as emphasized by the appellees. However, it also recognized the importance of allowing appeals to be reviewed on their merits. The distinction between mandatory and directory rules is essential; only a failure to comply with mandatory rules creates a jurisdictional defect warranting dismissal. The court planned to analyze the specific rules in question—Rule 5A:11(b) and Rule 5A:1(10)—within the broader context of appellate jurisdiction and procedural requirements.

Code 17-116.05 establishes that appeals from final decisions of the commission are of right, while criminal appeals under Code 17-116.05:1 are through a petition. Workers' compensation appeals, governed by Code 65.1-98, are directed to the Court of Appeals following the Supreme Court Rules. Notice of appeal must be filed with the Industrial Commission within thirty days of the award or notice, and a copy must also be filed with the Court of Appeals. The term 'filed' is defined in the Workers' Compensation Act, allowing for hand delivery, telegraph, or certified/registered mail. Importantly, filing by first-class mail is complete only when the application reaches the Commission.

Code 65.1-2.1 does not require that a copy of the notice of appeal be delivered to opposing counsel, which raises questions about the relationship between statutes and rules. The rules regarding appeals from the commission are consistent with statutes, suggesting that the requirement to mail a copy of the notice is directory rather than mandatory. 

Rule 5A:11 outlines that the notice of appeal must reach the clerk of the commission within thirty days. Once filed, the clerk transmits the record to the Court of Appeals, triggering timelines for briefs as per Rule 5A:19(b), and requires an appendix under Rule 5A:25. If an appellant does not mail a copy of the notice to the appellee, the appellee is nonetheless informed when the record is filed, and they are not obligated to act until then. Since appeals are a matter of right, the appellee should not assume the litigation is concluded following a favorable commission decision. Consequently, the failure to mail a copy does not invalidate the filing of the notice of appeal, as this mailing requirement is deemed directory.

The legal document emphasizes that the bar must adhere to established provisions, reflecting good practice and professional courtesy, but acknowledges that failure to comply does not disrupt the judicial system's order, particularly in appeals. The case centers on whether Johnson unjustifiably refused suitable employment as defined under Code 65.1-63 after suffering an industrial injury in 1980, which led to temporary total disability benefits. In 1981, his physician, Dr. Varner, suggested he could return to work with restrictions or pursue vocational rehabilitation. Over the years, Johnson engaged in various rehabilitation programs; by 1986, a rehabilitation consultant, Childers, found him a part-time cook position at Hardee's, approved by Dr. Varner. Johnson voiced concerns about the job due to health issues and lack of experience, despite reassurances from Childers regarding transportation and training. At the interview, he raised his concerns to the employer, who subsequently chose not to hire him. Following this, his employer sought to terminate his benefits, claiming non-cooperation with rehabilitation efforts. The deputy commissioner ruled in favor of the employer, and the commission affirmed this decision, determining Johnson's actions constituted an unjustified refusal of selective employment. According to Code 65.1-63, an injured employee who refuses suitable employment is not entitled to benefits unless the refusal is justified. Precedent from Ellerson v. W.O. Grubb Steel Erection Co. establishes that a refusal finding must show a bona fide job offer, suitable to the employee's capacity, and an unjustified refusal to accept it.

Johnson's appeal argues that there was no bona fide job offer, nor an unjustified refusal of employment on his part. This argument reflects the commission's view that Johnson's lack of cooperation with the employer's placement efforts equates to an unjustified refusal of selective employment. The appellees contend, without citing Virginia appellate authority, that the absence of a job offer is irrelevant due to Johnson's failure to engage with rehabilitation efforts, as outlined in Code § 65.1-88. This code mandates that an employee's unjustified refusal of vocational rehabilitation training bars them from further compensation until compliance is achieved. The success of such training is contingent on the employee's cooperation, which also impacts the employer's ability to find suitable employment for the employee. 

The discussion centers on Johnson's claim that no job was offered, and thus he has not refused employment under Code § 65.1-63. There is no direct Virginia appellate authority on this issue; typically, cases involve the suitability of employment or justification for refusal. In most instances, if no offer is made, the provisions of Code § 65.1-63 would not apply. The case of Jules Hairstylists, Inc. v. Galanes is referenced, which affirmed that an employee's failure to attend job interviews was not a refusal of employment, as the employer had not proven the employee was made aware of the interviews. The court acknowledged that failing to attend an interview could constitute a refusal if justified, reinforcing that an employee’s actions may influence the job offer process. Ultimately, interpreting these statutes together suggests that an employee cannot circumvent the provisions of Code § 65.1-63 by intentionally sabotaging their job prospects during interviews.

An employee's refusal to cooperate with placement efforts, as determined by the commission, can equate to an unjustified refusal of selective employment, even without an actual job offer, under Code 65.1-63. The commission can weigh evidence to assess whether an employee's negative actions during a job interview were intended to thwart employment opportunities. In this case, Johnson's conduct during the interview was scrutinized to determine if it constituted an unjustified refusal of a suitable job at Hardee’s, which had been deemed appropriate for him despite his physical and educational limitations. Johnson, a 29-year-old laborer with a foot condition and functional illiteracy, had undergone vocational rehabilitation, including an educational program that improved his reading and math skills. He completed a small engine repair course and was deemed capable of performing the cooking job, which involved on-the-job training to help him adapt. Concerns he raised during the interview were addressed by the rehabilitation consultant and the prospective employer, including assurances about training and workplace safety. The key issue is whether sufficient evidence exists to classify Johnson's interview conduct as an unjustified refusal of the job offer.

The commission found that Johnson's concerns regarding his employment were legitimate; however, it believed he was aware that his approach in raising these issues with the prospective employer would hinder his chances of obtaining the job. This conclusion was supported by the manager's unrefuted testimony, which indicated that Johnson's demeanor during the interview suggested a lack of interest in the position, and his concerns were characterized as negative rather than positive. The commission noted that a rehabilitation consultant had previously advised Johnson to maintain a positive attitude during the interview, and that his concerns had already been addressed.

The legal analysis focused on whether Johnson's behavior at the interview could be deemed negative or positive. The evidence regarding the interview was clear, supporting the commission's finding that Johnson's concerns were legitimate and truthful. Employees have the right to discuss their legitimate concerns with prospective employers, and such discussions are part of the interview process. Johnson did not misrepresent his disabilities, which included wearing a leg brace and being functionally illiterate, and there was no indication that discussing these issues would reasonably prevent a job offer.

The subjective impression of the employer that Johnson did not interview well was insufficient to support the commission's finding of job refusal, as there was no objective evidence to suggest that his truthful discussion of his disabilities negatively impacted his employment prospects. Consequently, the commission's decision was reversed. Additionally, Judge Moon concurred in part and dissented in part, agreeing that Johnson's appeal should not be barred despite his failure to comply with a procedural rule regarding notice to opposing counsel, due to the rule's unclear meaning.

Rule 5A:11 regarding appeals from the Industrial Commission specifies 'files with the Clerk' to encompass both sending the notice of appeal to opposing counsel and filing it with the clerk. However, the rule does not explicitly mandate sending the notice to opposing counsel. To clarify this phrase, one must refer to Rule 5A:1(10), which defines it as involving both actions. This creates confusion, as Rule 5A:6, pertaining to trial court appeals, only requires filing with the clerk and explicitly mandates sending a copy to opposing counsel. The omission of this explicit requirement in Rule 5A:11 could lead to unjust dismissal of appeals due to drafting inconsistencies, particularly in Johnson's case, where no prejudice was shown. 

Despite agreeing that Johnson’s appeal should not be dismissed for the notice issue, dissenting opinions argue that Johnson unjustifiably refused employment at Hardee's. The Industrial Commission found that Johnson's negative demeanor during interviews was detrimental to his job prospects, despite being advised to maintain a positive attitude. The obligation of a worker's compensation recipient to cooperate in job placement efforts is emphasized. The decision is criticized for potentially encouraging negative behavior in job interviews, undermining the intent of Code. 65.1-63. Judge Coleman concurs that the inconsistency in the rules justifies not dismissing Johnson's appeal, but aligns with Chief Judge Koontz that the evidence does not support a finding of unjustifiable refusal of selective employment.