Smith v. Federal Express Corp., VWC File No. 238-96-25 (July 23, 2010)

The Full Commission affirmed the Deputy Commissioner’s finding that the Employer did not prove that the claimant failed to cooperate with vocational rehabilitation. The Employer argued that the claimant’s unwillingness to drive a school bus was failure to accept vocational rehabilitation services.

After being released to light duty, Claimant was referred to a case manager for vocational rehabilitation. The case manager noted that the claimant failed to get his DOT card updated and that the claimant informed her that Inova told him he needed to be employed before they could update a DOT card. The case manager stated that the claimant refused to apply for a variety of school or passenger bus driving positions. Claimant testified that he met with the case manager every time she requested a meeting and that he applied for employment at Virginia Transit but was not offered a job. He stated that he does not have transportation and does not have funds to get his DOT card or CDL updated. He admitted that he did not apply for the school bus driver positions because he would prefer not to drive a school bus and that the other positions were too far from his home.

Employer argued that the wrong standard was applied and that the Deputy Commissioner should have determined whether the claimant refused to accept vocational rehabilitation as opposed to failure to comply. The Full Commission found that the claimant did cooperate with the vocational rehabilitation services and that the statement as to why he did not want to drive a school bus does not amount to refusal to accept vocational rehabilitation because there was no additional information as to why claimant felt that way.

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