COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Senior Judge Hodges
Argues at Norfolk, Virginia
WALTER REED CONVALESCENT CENTER/
VIRGINIA HEALTH SERVICES, INC.
OPINION BY
v. Record No. 1063-96-1 JUDGE WILLIAM H. HODGES
MARCH 11, 1997
JEANICE ANNE REESE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Linda M. Ziegler (Crews & Hancock, PLC, on
briefs), for appellant.
John H. Klein (Matthew H. Kraft; Rutter &
Montagna, L.L.P., on brief), for appellee.
Walter Reed Convalescent Center/Virginia Health Services,
Inc. (employer) appeals from a decision of the Workers'
Compensation Commission (commission) awarding Jeanice Anne Reese
(claimant) compensation for various periods of temporary partial
and temporary total disability. Employer contends that the
commission erred in finding that (1) selective employment
procured by employer for claimant exceeded her residual work
capacity; and (2) claimant's termination from selective
employment was not caused by her wrongful acts so as to justify a
forfeiture of workers' compensation benefits pursuant to the rule
enunciated in Chesapeake & Potomac Telephone Co. v. Murphy, 12
Va. App. 633, 406 S.E.2d 190, aff'd en banc, 13 Va. App. 304, 411
S.E.2d 444 (1991).
We find no credible evidence in the record to support the
commission's finding that the errors and omissions made by
claimant during the performance of her job as a ward clerk, which
resulted in her termination from that job, were causally related
to her injury and its residual effects. Rather, the credible
evidence in the record clearly established that claimant's
termination from selective employment was due solely to her
repeated negligent mistakes, which potentially placed employer's
patients in jeopardy. Based upon this record, we hold that
employer was justified in terminating claimant for cause.
Accordingly, we reverse the commission's decision and remand for
the commission to enter an award terminating claimant's
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disability benefits as of June 21, 1995.
BACKGROUND
On December 2, 1993, while working as a licensed practical
nurse ("LPN") for employer, claimant sustained a compensable
injury by accident to her right hand/wrist. On March 24, 1994,
claimant came under the care of orthopedic surgeon, Dr. Jeffrey
Moore, who diagnosed post-traumatic deQuervain's syndrome of the
right wrist. On July 14, 1994, claimant underwent deQuervain's
release surgery on her right wrist. On July 26, 1994, Dr. Moore
released claimant to light-duty work with restrictions against
lifting over ten pounds and repetitive use of her right hand.
1
Employer also argues that the commission improperly relied
upon claimant's written statement on review. This argument is
without merit. The commission stated in its opinion that it
would not consider claimant's written statement because it was
not timely filed. There is nothing in the commission's opinion
to indicate that it improperly considered the written statement.
2
In July 1994, claimant returned to work for employer as an
LPN, with modified duties. On September 15, 1994, employer
reassigned claimant to a medication nurse job because of the
injury-related problems she was having performing the LPN job and
keeping up with the workload. Claimant also had difficulty
performing the medication nurse job due to her injury.
Therefore, in October 1994, employer reassigned claimant to a
ward clerk job. Claimant worked full-time in the ward clerk job
from October 1994 until her termination on June 21, 1995.
On March 7, 1995, employer disciplined claimant for putting
a physician's order in the wrong book, resulting in a patient
going without medication. Employer's Employee Counselling Forms,
dated between May 10, 1995 and June 20, 1995, show that employer
disciplined claimant numerous times for failing to complete
forms, failing to transcribe orders, failing to pull computer
copies of "POFs," placing a physician's order in the wrong book,
erroneous transcriptions of forms or orders, placing an order on
an order sheet which claimant knew did not belong on the sheet,
failing to hand in the beauty shop list, failing to hang up door
cards, and acting aloof and non-caring to a family member of a
patient. Although the Employee Counselling Forms contained space
for claimant to explain her mistakes, she never reported that her
mistakes or her failure to properly perform her job were due to
pain from her injury or an inability to keep up with the
workload.
3
On June 21, 1995, employer disciplined claimant for failing
to transcribe a physician's orders to the medication
administration record, causing a patient not to receive his
medication and for failing to complete the monthly "POFs." The
June 21, 1995 Employee Counselling Form indicated that claimant
had been reprimanded for this same behavior on March 7, 1995, May
10, 1995, and May 18, 1995, respectively, and that claimant's
behavior had not improved. Employer terminated claimant on June
21, 1995.
At the hearing, claimant testified that the ward clerk job
required her to lift charts and write constantly. She stated
that she could not keep up with the workload because she could
not write for prolonged periods and had to use her left hand.
She contended that pain caused by her injury slowed her work
output and that she told her supervisor about these problems.
Fay Kellam, employer's Director of Nursing, testified that
in April 1995, after working in the ward clerk job for
approximately six months, claimant signed a ward clerk job
description, making several amendments to the description, which
employer accepted. These amendments reflected that claimant was
unable to take vital signs and would stock supplies and purge
records "as able." Kellam stated that claimant agreed to perform
the other job duties, and, although she told claimant to ask for
help if necessary, claimant did not ask for help. Kellam stated
that claimant did not express concerns to her about not being
4
able to perform the ward clerk job duties because of the
workload, because of the pain from her injury, or because she
needed to take breaks. Kellam stated that claimant did not have
trouble performing the ward clerk job, but simply failed to
perform tasks or made errors. Kellam testified that claimant was
terminated on June 21, 1995 because she repeatedly failed to
transcribe physician's orders, causing patients not to receive
medication or to receive the wrong medication.
The medical record reveals that on August 23, 1994, Dr.
Moore reported that claimant continued to work in a light-duty
capacity, but her wrist remained symptomatic. Dr. Moore
continued claimant on light-duty with a restriction against
repetitive or vigorous use of her right hand. On September 15,
1994, Dr. Moore noted improvement in claimant's symptoms, but
kept her on restricted duty. On that same date, Dr. Moore signed
a "Modified Duty Work Evaluation" form, indicating that claimant
could lift up to five pounds and push or pull up to ten pounds.
Dr. Moore placed no restrictions on claimant standing, sitting,
or bending, but advised that claimant should avoid overuse and
repetitive activities.
On October 12, 1994, Dr. Moore reported that claimant
suffered from increased pain due to excessive use of her right
hand. He opined that claimant was developing a reflex dystrophy
of the right arm, and he recommended a sympathetic block. Dr.
Moore stated that "[o]nce we control the pain I would not
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necessarily limit her activities at work and I think that she
should use her hand and arm as much as possible." However, Dr.
Moore stated that, "[i]n the meantime, would recommend curtailing
her activities within her limits of discomfort." On November 2,
1994, Dr. Moore noted claimant's continuing pain and her failure
to obtain relief from the block. Dr. Moore stressed the
importance of the blocks to claimant to get the pain under
control. He did not change claimant's work status and encouraged
her to use her hand as much as possible within the limits of her
pain. On December 7, 1994, Dr. Moore noted claimant's decision
not to proceed with any further sympathetic blocks. Having
nothing further to offer claimant, Dr. Moore recommended claimant
undergo an evaluation at the MCV Pain Management Center ("MCV").
On February 20, 1995, claimant began treatment at MCV with
Dr. Amir Rafil. On March 13, 1995, Dr. Rafil administered a
block and prescribed physical therapy. On April 12, 1995, Dr.
Rafil prescribed a TENS unit for claimant. On April 26, 1995,
claimant reported a fifteen percent improvement to Dr. Rafil, and
she told him that she continued to work full-time. Dr. Rafil
recommended that claimant continue to wear a wrist brace. 2 On
May 24, 1995, claimant reported a twenty percent improvement to
Dr. Rafil, and she told him that her activity level had improved.
2
There is no evidence in the record establishing that
claimant ever actually wore a wrist brace or that such a brace
had any impact on claimant's ability to perform the ward clerk
job.
6
Dr. Rafil noted that claimant suffered from only mild to
moderate pain. On that date, Dr. Rafil opined that claimant had
reached maximum medical improvement and recommended she continue
using the TENS unit and the wrist brace. On June 12, 1995, Dr.
Rafil reported a twenty percent improvement. He discharged
claimant and recommended that she see Dr. Stewart for follow-up
care. Dr. Rafil's records between February 1995 and June 1995 do
not contain any notation that claimant reported difficulty
performing the duties of the ward clerk job due to her injury.
The deputy commissioner relied upon the Employee Counselling
Forms and Kellam's testimony to find that employer proved that
claimant neglected the duties of the ward clerk job, noting that
on several occasions she incorrectly transcribed a physician's
orders or failed to transcribe a physician's orders. Based upon
this evidence, the deputy commissioner found that employer was
justified in terminating claimant's employment for cause on June
21, 1995, and therefore, claimant was not entitled to
compensation benefits as long as she remained partially disabled.
On review, the commission modified the deputy commissioner's
decision, finding that the deputy commissioner did not make the
necessary factual determination of whether the duties of the ward
clerk job fell within the claimant's residual capacity. The
commission ruled that before it could apply the C & P Telephone
v. Murphy forfeiture rule, it had to determine that the
7
light-duty job procured by employer was suitable to claimant's
residual capacity. The commission found that the ward clerk job
duties exceeded claimant's light-duty restrictions. Based on
this ruling, the commission refused to apply the C & P Telephone
v. Murphy forfeiture rule. Instead, the commission found that
claimant's inability to perform the ward clerk job was caused by
her injury, which resulted in her termination. The commission
modified the deputy commissioner's decision by awarding claimant
temporary total disability benefits beginning June 21, 1995 and
continuing.
I.
"Although the findings of the . . . Commission, if based on
credible evidence, are conclusive and binding upon us, the
Commission's findings of fact are not binding upon us when there
is no credible evidence to support them. The question of
sufficiency of the evidence then becomes one of law." Morris v.
Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348
S.E.2d 876, 877 (1986).
The commission found that the ward clerk job exceeded
claimant's light-duty restrictions. However, the commission did
not identify any specific restrictions violated by claimant's
performance of the ward clerk job. The commission also failed to
take into account that claimant worked for six months in the ward
clerk job without difficulty, agreed to the amended job
description in April 1995, and gave no indication at that time
8
that she could not perform the duties of the ward clerk job, as
amended. Rather, the commission supported its finding by relying
on claimant's testimony that she could not perform the ward clerk
job and her physicians' suggestion that she wear a brace while
working.
Based upon our review of the record, we find claimant's
testimony inherently incredible and inconsistent with the medical
records, the counselling forms, and Kellam's testimony. Absent
claimant's testimony, no evidence established that the duties of
the ward clerk job, as amended, fell outside of claimant's
residual capacity. Accordingly, the commission erred in ruling
that the ward clerk job was not suitable to claimant's residual
capacity.
II.
In Eppling v. Schultz Dining Programs/Commonwealth of
Virginia, 18 Va. App. 125, 442 S.E.2d 219 (1994), this Court set
forth the law applicable to this case:
When a disabled employee is discharged
from selective employment, the "inquiry
focuses on whether the claimant's benefits
may continue in light of [her] dismissal."
An employee's workers' compensation benefits
will be permanently forfeited only when the
employee's dismissal is "justified," the same
as any other employee who forfeits her
employment benefits when discharged for a
"justified" reason.
A "justified discharge . . . does not
simply mean that the employer can identify or
assign a reason attributable to the employee
as the cause for his or her being discharged.
Whether the reasons for the discharge is for
"cause," or is "justified" for purposes of
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forfeiting benefits must be determined in the
context of the purpose of the Act and whether
the conduct is of such a nature that it
warrants permanent forfeiture of those rights
and benefits. "[T]he Commission . . . must
be mindful of the purposes and goals of the"
Act.
Id. at 128, 442 S.E.2d at 221. "[I]n order to work a forfeiture,
the 'wage loss [must be] properly attributable to [the
employee's] wrongful act . . . [for which t]he employee is
responsible.'" Id. at 129, 442 S.E.2d at 222 (citation omitted).
We find no case law to support the commission's holding that the
employer must prove that the employee's wrongful act was
intentional, willful, or deliberate in order to justify a
3
termination for cause and a forfeiture of compensation benefits.
The commission concluded that claimant's inability to
perform her job due to her physical restrictions led to her
termination. This finding is not supported by credible evidence.
Claimant's testimony that she could not perform the ward clerk
job during the spring and early summer of 1995 is inconsistent
3
The commission ruled that in order to terminate a partially
disabled employee's compensation benefits due to the employee's
termination, the employer must prove that the employee's
termination was caused by the employee's willful or deliberate
misconduct at work. Richmond Cold Storage Co., Inc. v. Burton, 1
Va. App. 106, 111, 335 S.E.2d 847, 850 (1985). This standard
applies to a proceeding before the Virginia Employment Commission
to determine whether an employee has been discharged for
misconduct so as to bar unemployment compensation benefits. We
have never held that a "wrongful act" which does not necessarily
rise to the level of "willful or deliberate" cannot constitute
justification for a termination for cause from selective
employment so as to cause a forfeiture of workers' compensation
benefits.
10
with the medical records generated during this time period, which
reflected that she continued to improve and was working full-time
without apparent difficulty. Although claimant testified that
she could not perform the ward clerk job because it required her
to lift charts, no evidence in the record established that the
charts weighed more than five pounds. In addition, the record
does not contain any evidence of the percentage of time claimant
spent writing on the job. The ward clerk job description
contains many duties which did not require writing. Claimant
agreed to accept the job description in April 1995, as modified
by her, as evidenced by her signature. No evidence disputed
Kellam's testimony that employer agreed to these modifications.
Moreover, Kellam testified that claimant never told her that she
was having difficulty performing the duties of the job due to
pain caused by her injury. Kellam's testimony, unlike
claimant's, is corroborated by the Employee Counselling Forms.
Each Employee Counselling Form provided a space where claimant
could have stated that her injury and disability prevented her
from performing her job or caused her mistakes. However, she
never reported that her injury prevented her from carrying out
her duties or caused her to make errors. In fact, claimant never
testified that her alleged inability to keep up with the workload
4
due to her injury caused her to make mistakes.
4
The commission considered Dr. Stewart's July 11, 1995
Attending Physician's Report. However, Dr. Stewart generated
this report after employer terminated claimant from her job, and
therefore, it is not relevant to the issue of whether claimant
11
The Employee Counselling Forms clearly indicated that
claimant repeatedly made errors in carrying out her job duties.
These errors were not caused by her injury, but instead were
caused by her incompetence and failure to follow properly
established rules and procedures. Employer discharged claimant
due to her repeated negligent errors, which claimant failed to
correct and which potentially placed employer's patients in
jeopardy. There is no evidence, other than claimant's
after-the-fact rationalizations, indicating that her errors or
omissions were caused by her wrist condition. Claimant had ample
opportunity to include a written statement on the disciplinary
notices to explain her mistakes, to tell her supervisors of her
problems related to her injury, or to report such problems to her
physicians. She did not do so.
In this case, the evidence established as a matter of law
that claimant's wrongful acts, which jeopardized employer's
patients, and not her injury or disability, caused her wage loss.
Thus, this loss was not employer's responsibility. The evidence
established that claimant's termination was unrelated to her
injury and was due solely to her misconduct. The facts in this
case are distinguishable from those in Eppling, where we held
that the claimant's excessive absenteeism caused by a
non-work-related injury beyond the employee's control was not the
could physically perform the ward clerk job prior to her
termination.
12
type of wrongful act which, upon termination, justified a
forfeiture of workers' compensation benefits. Id. at 129-30, 422
S.E.2d at 222. In Eppling, credible evidence proved that the
claimant's absences were due to non-work related health problems.
Id. In this case, credible evidence established that claimant's
failure to properly perform her job was caused by her
incompetence, not her injury. No credible evidence showed that
claimant's mistakes were caused by her injury or its residuals
effects.
For these reasons, we reverse the commission's decision and
remand for the commission to enter an award consistent with this
opinion.
Reversed and remanded.
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