COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Richmond, Virginia
SKIP'S AUTO PARTS/ADP TOTALSOURCE AND
ROYAL INSURANCE COMPANY OF AMERICA
MEMORANDUM OPINION * BY
v. Record No. 0984-02-2 JUDGE ROBERT J. HUMPHREYS
DECEMBER 31, 2002
DOUGLAS HARRISON CLINE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
S. Vernon Priddy III (Sands, Anderson,
Marks & Miller, on brief), for appellants.
Wesley G. Marshall for appellee.
Skip's Auto Parts/ADP TotalSource and Royal Insurance Company
of America ("employer"), appeal from a decision of the workers'
compensation commission awarding Douglas H. Cline temporary total
disability benefits, beginning September 1, 2001 and continuing.
For the reasons that follow, we affirm the decision of the
commission.
I. Background
"In accordance with well established principles, we consider
the evidence in the light most favorable to the prevailing party
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
below." Hillcrest Manor Nursing Home v. Underwood, 35 Va. App.
31, 34, 542 S.E.2d 785, 787 (2001). So viewed, the evidence here
established that Cline injured his back while working as a parts
deliveryman for employer. On August 31, 2001, after employer
discovered Cline was taking Percocet, prescribed for the pain
resulting from his injury, employer terminated Cline's selective
duty employment, which required Cline to drive.
On appeal, employer contends that "[g]iven the [deputy
commissioner's] unappealed credibility finding on Cline's daytime
use of Percocet," the evidence established employer terminated him
for cause. Thus, employer argues the commission erred in finding
Cline adequately marketed his residual work capacity, because he
was required to "cure, rather than simply market his residual
capacity." Employer further contends that, in the alternative,
Cline's evidence failed to establish that he adequately marketed
his residual capacity. We disagree.
We first note that "[f]actual findings by the commission that
are supported by credible evidence are conclusive and binding upon
this Court on appeal." Southern Iron Works, Inc. v. Wallace, 16
Va. App. 131, 134, 428 S.E.2d 32, 34 (1993). Indeed, "[i]f there
is evidence, or reasonable inferences can be drawn from the
evidence, to support the Commission's findings, they will not be
disturbed on review, even though there is evidence in the record
to support a contrary finding." Morris v. Badger Powhatan/Figgie
Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986).
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However, whether a claimant may be disqualified from benefits for
work-related misconduct "is a mixed question of law and fact
reviewable by this court on appeal." Israel v. Virginia
Employment Comm'n, 7 Va. App. 169, 172, 372 S.E.2d 207, 209
(1988).
Code § 65.2-510(a) provides that "[i]f an injured employee
refuses employment procured for him suitable to his capacity, he
shall only be entitled to the benefits provided for in §§ 65.2-503
and 65.2-603 . . . during the continuance of such refusal, unless
in the opinion of the [c]ommission such refusal was justified."
"This statute does not require that employers make selective
employment available. But the relief thereby afforded an employer
when an employee unjustifiably refuses to accept or continue
selective employment is limited to those cases in which the
employer has provided or procured such employment." Big D Quality
Homebuilders v. Hamilton, 228 Va. 378, 381-82, 322 S.E.2d 839, 841
(1984) (citation omitted).
In Ellerson v. W. O. Grubbs Steel Erection
Co., 1 Va. App. 97, 98, 335 S.E.2d 379, 380
(1985), we held that "in order to support a
finding [of refusal] based upon Code
[§ 65.2-510], the record must disclose (1) a
bona fide job offer suitable to the
employee's capacity; (2) procured for the
employee by the employer; and (3) an
unjustified refusal by the employee to
accept the job."
Johnson v. City of Clifton Forge, 9 Va. App. 376, 377, 388
S.E.2d 654, 655 (1990) (en banc).
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Employer first argues that because of the statements Cline
made to personnel and because of the "actions he took at work,"
employer was "convinced" Cline was taking Percocet "during the day
while driving his truck. Concerned about potential liability,"
employer "placed Cline in an inactive status." Thus, employer
contends it "terminated Cline's light duty job for cause as a
matter of law."
We have held that
[a]n injured employee may "cure" an
unjustified refusal of selective employment
provided or procured by the employer by
accepting such employment or by obtaining
comparable selective employment. However,
an employee on selective employment offered
or procured by the employer, who is
discharged for cause and for reasons not
concerning the disability, forfeits his or
her right to compensation benefits like any
other employee who loses employment benefits
when discharged for cause.
Timbrook v. O'Sullivan Corp., 17 Va. App. 594, 597, 439 S.E.2d
873, 875 (1994) (citations omitted). "The reason for the rule is
that the wage loss is attributable to the employee's wrongful act
rather than the disability." Id.
Indeed, an employee's "wrongful act" is the linchpin for a
"justified" discharge - one which warrants forever barring
reinstatement of workers' compensation benefits. See Eppling v.
Schultz Dining Programs, 18 Va. App. 125, 128-29, 442 S.E.2d 218,
221-22 (1994). However,
"[a] justified discharge . . . does not
simply mean that the employer can identify
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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 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
[c]ommission . . . must be mindful of the
purposes and goals of the" Act.
Walter Reed Convalescent Center v. Reese, 24 Va. App. 328, 336,
482 S.E.2d 92, 97-98 (1997) (quoting Eppling, 18 Va. App. at
128, 442 S.E.2d at 221).
In the case at bar, the commission found that Cline's
consumption of the medication was a direct result of the
compensable injury that he suffered. In fact, the evidence
established that the medication was consistently prescribed to
Cline by his treating physician, to take on an as needed basis.
Thus, as the commission noted, if we accept employer's claim that
it "terminated [Cline's] light duty job" because of his
consumption of the medication, the record demonstrates that Cline
did nothing to justify termination of his selective employment.
Accordingly, the commission did not err in determining that Cline
was entitled to the appropriate benefits after September 1, 2001,
and was not required to "cure" any "unjustified" refusal of
selective employment. See Big D Quality Homebuilders, 228 Va. at
381-82, 322 S.E.2d at 841.
Employer next contends that the commission erred in finding
Cline's evidence sufficient to establish that he adequately
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marketed his residual work capacity after his separation from
employment in September. We again disagree.
"In order to continue to receive benefits under the Workers'
Compensation Act, a claimant who has been injured in a job-related
accident must market his remaining capacity to work." Herbert
Bros., Inc. v. Jenkins, 14 Va. App. 715, 717, 419 S.E.2d 283, 284
(1992). We have held that "[w]hat constitutes a reasonable
marketing effort depends upon the facts and circumstances of each
case." Greif Companies (GENESCO) v. Sipe, 16 Va. App. 709, 715,
434 S.E.2d 314, 318 (1993).
[I]n deciding whether a partially disabled
employee has made [a] reasonable effort to
find suitable employment commensurate with
his abilities, the commission should
consider such factors as: (1) the nature and
extent of employee's disability; (2) the
employee's training, age, experience, and
education; (3) the nature and extent of
employee's job search; (4) the employee's
intent in conducting his job search; (5) the
availability of jobs in the area suitable
for the employee, considering his
disability; and (6) any other matter
affecting employee's capacity to find
suitable employment.
National Linen Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d
31, 34 (1989) (footnotes omitted). "The commission . . .
determines which of these or other factors are more or less
significant with regard to the particular case." Id. at 272-73,
380 S.E.2d at 34-35; see also Lynchburg General Hospital v.
Spinazzolo, 22 Va. App. 160, 168, 468 S.E.2d 146, 150 (1996).
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Thus, in examining Cline's "intent in conducting his job
search," the commission had to determine "whether it was evident
from the employee's conduct that he was acting in good faith in
seeking suitable employment." National Linen Serv., 8 Va. App. at
272 n.3, 380 S.E.2d at 34 n.3. On these facts, we find the
commission reasonably determined that Cline's job search was made
in good faith. Cline established that he registered with the VEC
and that he personally contacted approximately 22 employers,
inquiring whether they had employment available. The fact that
the employers had not advertised positions does not diminish
Cline's efforts in this regard. Furthermore, as the commission
noted, the fact that several of the positions Cline sought were
driving positions is of no consequence. Indeed, the evidence
established that Cline's treating physician never restricted his
ability to drive.
For the above-stated reasons, we affirm the decision of the
commission.
Affirmed.
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