COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
JOANNE SIFFORD GLASS
MEMORANDUM OPINION*
v. Record No. 0495-01-3 PER CURIAM
JULY 10, 2001
TULTEX CORPORATION
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(George L. Townsend; Chandler, Franklin &
O'Bryan, on brief), for appellant.
(James A. L. Daniel; Elizabeth B. Carroll;
Daniel, Vaughan, Medley & Smitherman, P.C.,
on brief), for appellee.
Joanne Sifford Glass (claimant) contends that the Workers'
Compensation Commission erred in finding that she was not
entitled to disability benefits after September 22, 1999 because
she had been previously terminated for cause effective July 12,
1997 from light duty employment procured for her by Tultex
Corporation (employer). Upon reviewing the record and the
briefs of the parties, we conclude that this appeal is without
merit. Accordingly, we summarily affirm the commission's
decision. See Rule 5A:27.
This appeal does not present a case of
conflicting evidence or a dispute concerning
the commission's findings of fact. When the
issue is the sufficiency of the evidence and
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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there is no conflict in the evidence, the
issue is purely a question of law. This
Court is not bound by the legal
determinations made by the commission.
"[W]e must inquire to determine if the
correct legal conclusion has been reached."
Cibula v. Allied Fibers & Plastics, 14 Va. App. 319, 324, 416
S.E.2d 708, 711 (1992) (citations omitted).
In a June 9, 1998 opinion, Deputy Commissioner Herring held
that claimant was discharged from selective employment because
she fought with a co-worker on employer's premises while at
work, a reason wholly unrelated to her disability and for which
she was responsible. The deputy commissioner held that claimant
was discharged for just cause and terminated her award of
temporary partial disability benefits effective July 12, 1997.
That opinion was not appealed, and became final.
On March 31, 1999, claimant's physician again removed her
from work. Employer accepted the period of total incapacity
from that date until September 21, 1999, when claimant was
released to work with restrictions on September 22, 1999. After
September 22, 1999, claimant marketed her residual capacity. As
of September 22, 1999, employer had closed the plant at which
claimant worked and filed for Chapter 11 bankruptcy.
Before the commission and in this appeal, claimant argues
that because employer subsequently closed the plant where she
had worked and filed for bankruptcy, her termination for
justified cause was no longer a contributing factor to her wage
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loss because employer no longer had light-duty available.
Claimant argues that employer should be required to pay her
benefits beginning September 22, 1999. She contends that
employer's filing for bankruptcy and winding up its business was
tantamount to a withdrawal of its constructive offer of
selective employment and that the commission erred in relying
upon Eppling v. Schultz Dining Programs, 18 Va. App. 125, 422
S.E.2d 219 (1994). We disagree.
A disabled employee's discharge from selective employment
for reasons unrelated to her disability but for which she is
responsible is equivalent to an unjustified refusal of selective
employment. See id. at 130, 442 S.E.2d at 222.
The rationale for this principle is that
when an employee's work-related disability
has resolved itself to the point that the
worker can return to gainful employment, he
or she is required to do so. An employer is
not responsible for a disabled employee who
is no longer unable to return to gainful
employment because of his or her
work-related injuries, but is prevented from
doing so for other reasons.
Id. Furthermore, an employee cannot cure a discharge for cause
from employer procured selective employment by obtaining
alternative employment on his or her own. See Chesapeake &
Potomac Telephone Co. v. Murphy, 12 Va. App. 633, 639, 406
S.E.2d 190, 193, aff'd on rehearing en banc, 13 Va. App. 304,
411 S.E.2d 444 (1991). In Murphy, we reasoned as follows:
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[W]here a disabled employee is terminated
for cause from selective employment procured
or offered by [the] employer, any subsequent
wage loss is properly attributable to his
[or her] wrongful act rather than his [or
her] disability. The employee is
responsible for that loss and not the
employer. In this context, we are unable to
find any provision within the Workers'
Compensation Act which evidences an intent
by the legislature to place such an employee
in a better position than an uninjured
employee who is terminated for cause and by
his wrongful act suffers a loss of income.
Id. at 639-40, 406 S.E.2d at 193.
Here, claimant was terminated for just cause. Therefore,
she permanently forfeited her right to future compensation
benefits such as those sought in this case, regardless of any
future circumstances of the employer, so long as her loss was
attributable to her wrongful act and not her disability. We
find no support for claimant's argument that because employer
closed its plant and filed for bankruptcy after she was
terminated for just cause that she should now be entitled to a
resumption of benefits. Under the circumstances of this case,
employer had no duty to offer claimant light-duty employment
after her termination. As the commission held:
[C]laimant is no longer employed by the
employer, and was not so employed at the
time of the plant closure. It is undisputed
that her employment was previously
terminated for the clearly justifiable
reason that she was fighting on the job. We
therefore conclude that the claimant's
termination for cause is the proximate cause
of her wage loss, and that the employer's
subsequent bankruptcy and plant closure are
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not "intervening causes" which in any way
require reinstatement of compensation
benefits.
For these reasons, we affirm the commission's decision.
Affirmed.
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