Food/Bev Serv-Crystal City and Hyatt Corporation v. Tahssin Al-Boarab, 0215174

In 2014 claimant injured his left shoulder at work; the Commission entered an agreed award for medical benefits and temporary total disability (TTD).
Dr. Michael Chung treated claimant and in spring 2015 released him to limited work; an initial vocational counseling appointment was set for June 23, 2015.
Claimant traveled to Iraq for his mother’s illness and death, so the counseling intake was rescheduled and claimant first met the vocational counselor on August 11, 2015 (one of 11 meetings over late summer/fall 2015).
On August 5, 2015 Dr. Chung excused claimant from work, found he had severe loss of left-shoulder ROM and chronic pain, and recommended an FCE and later work conditioning; Dr. Chung repeatedly excused claimant from work thereafter and ultimately considered permanent disability if conditioning failed.
A September 2015 FCE reported submaximal effort but recommended full-time sedentary work; the physical therapist noted guarding, pain behaviors, and poor productivity.
The deputy commissioner denied employer’s request to terminate TTD/credit benefits for alleged failure to cooperate with vocational rehabilitation; the full Commission unanimously affirmed. Employer appealed and the Court of Appeals of Virginia affirmed the Commission.

Issue	Plaintiff's Argument (Al-Boarab)	Defendant's Argument (Employer)	Held
Whether claimant was totally disabled (entitled to continued TTD)	Dr. Chung’s repeated findings show claimant was totally incapable of work after Aug 5, 2015	FCE(s) show claimant capable of at least sedentary work and thus not totally disabled	Court held claimant was totally disabled; credited Dr. Chung’s physician opinion over FCE
Whether claimant unjustifiably refused to cooperate with vocational rehabilitation	Claimant attended 11 counseling sessions; was medically excused during periods of total disability and thus had no obligation to comply	Employer argued claimant was unenthusiastic, late, and did not cooperate, warranting termination/credit of benefits	Court held claimant did not unjustifiably refuse to cooperate; periods of total disability removed obligation to participate and attendance supported cooperation

Pro-Football Inc. v. Paul, 39 Va. App. 1 (Va. Ct. App. 2002) (claimant must prove case by preponderance; Commission factual findings conclusive)
Ilg v. UPS, Inc., 284 Va. 294 (Va. 2012) (discusses when disability can justify refusal of vocational rehabilitation)
Anderson v. Anderson, 65 Va. App. 354 (Va. Ct. App. 2015) (refusal to cooperate with vocational services is a factual inquiry under totality of evidence)
Russell Loungewear v. Gray, 2 Va. App. 90 (Va. Ct. App. 1986) (evidence contrary to Commission is irrelevant if credible evidence supports the Commission)