COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Agee and Senior Judge Hodges
Argued at Chesapeake, Virginia
TRANSPORTATION SAFETY CONTRACTING
AND ST. PAUL FIRE & MARINE
INSURANCE COMPANY
MEMORANDUM OPINION * BY
v. Record No. 1713-00-1 JUDGE JAMES W. BENTON, JR.
MAY 22, 2001
ROBERT A. MARTIN, SR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
R. Ferrell Newman (Thompson, Smithers,
Newman, Wade & Childress, on brief), for
appellants.
John H. Klein (Montagna, Klein & Camden,
L.L.P., on brief), for appellee.
Transportation Safety Contracting contends that the Workers'
Compensation Commission erred (1) in reinstating the disability
benefits of Robert A. Martin, Sr., after Transportation Safety
terminated his selective employment and (2) by declining to
apply Code § 65.2-510(B) to bar Martin's compensation benefits
based upon his wages at his new employment. We affirm the
commission's award.
I.
Viewed in the light most favorable to Martin, who prevailed
before the commission, see Allen & Rocks, Inc. v. Briggs, 28 Va.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
App. 662, 672, 508 S.E.2d 335, 340 (1998), the evidence proved
that Martin injured his head and back while employed as an
electrical foreman for Transportation Safety. Prior to his
injury by accident, Martin was a commendable employee. The
record establishes that Martin had received substantial
financial bonuses and was knowledgeable about Transportation
Safety's business. Based on a memorandum of agreement, the
commission entered an award granting Martin temporary total
disability benefits.
Martin testified that while he was healing from his injury
he had to visit Transportation Safety on several occasions
because "they were not paying the [medical] bills on time and
[he] was receiving notice that [his] credit was going to be
damaged." Martin also testified that during these visits
several employees informed him that the division manager said he
"had been drinking and drugging" the day of his injury. The
evidence proved, however, that another employee's negligence
caused Martin's injury. Martin testified that Transportation
Safety had not given its employees safety manuals and that the
failure to have them created unsafe conditions.
When Martin was released to return to work in light duty,
Transportation Safety offered him an office position, where he
was able to use his computer skills. Martin testified that he
used his personal funds and Transportation Safety's computers to
establish an internet presence to facilitate Transportation
- 2 -
Safety's business efficiency. Martin also testified that after
he began his selective employment several employees again told
him that the division manager had suggested that Martin had
sustained his injury because he had been under the influence of
drugs or alcohol. When Martin went to the division manager to
complain about those statements, the division manager blamed
other employees for spreading rumors. During that discussion,
Martin also talked with the division manager about the lack of
safety manuals on the day of his accident. Martin testified
that he did so because after he returned to work he learned from
the office manager that "she had to call the home office . . .
and request a copy" of the safety manual.
The office manager testified that after Martin returned to
work in his light duty employment he began "badmouthing the
employees," including the employee whose negligence led to
Martin's injury. She heard Martin say that the employees were
incompetent and that "he'd trusted a fellow employee and he
would never do that again." She reported Martin's complaints to
the division manager. That same day, the division manager met
with Martin in her presence to discuss "what the problem was;
why was [Martin] unhappy; why was he saying all these things."
During that meeting, the division manager acknowledged that he
had made inquiries of the employees about whether Martin had
used drugs. The office manager said Martin "took offense to
- 3 -
that." She testified that when the division manager asked what
he could do to remedy the situation, Martin said, "fire me."
The division manager testified that when Martin returned
from his injury, Martin complained about the lack of safety
manuals. The division manager testified, however, that a safety
manual was in the office file and on the table but said Martin
"may not have been aware of it." The division manager also
testified that he met with Martin and the office manager after
she reported that Martin was unhappy. During that meeting, the
division manager denied that he had accused Martin of drug use.
He admitted, however, that he had investigated such a rumor and
that the investigation had ended when he "found out that no one
knew anything about it." The division manager testified that
Martin became angry about these allegations. When he asked
Martin what he could do to remedy the situation, Martin said,
"fire me." The division manager ended the meeting but later met
with Martin and terminated his employment. The division manager
testified that he believed this was a "mutually acceptable
parting of the ways."
Martin testified that during the meeting, he told the
division manager he believed the rumors of drug use slandered
him. He said he objected to the manner in which the inquiries
were made. Martin testified that the division manager became
"very defensive about that and several times . . . [said] not
only that he did not have to let [Martin] come back to work, but
- 4 -
that he could always fire [Martin]." Martin testified that
"after growing weary of [the discussion, he] said, go ahead if
that's what you feel necessary to do." The division manager
left the meeting and later terminated him, saying Martin "just
could not give 100 percent anymore."
II.
In pertinent part, 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 [Code] §§ 65.2-503 and 65.2-603 . . . during the
continuance of such refusal, unless in the opinion of the
Commission such refusal was justified." Applying the
predecessor statute, we held in Chesapeake & Potomac Telephone
Co. v. Murphy, 12 Va. App. 633, 406 S.E.2d 190, aff'd on reh'g,
13 Va. App. 304, 411 S.E.2d 444 (1991), that an employee who is
terminated for justifiable cause from selective employment that
is procured by the employer forfeits the right to cure this
termination by obtaining other employment. 12 Va. App. at
639-40, 406 S.E.2d at 193. Later, we further explained the rule
as follows:
When a disabled employee is discharged
from selective employment, the "inquiry
focuses on whether the claimant's benefits
may continue in light of [the] 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
- 5 -
. . . benefits when discharged for a
"justified" reason.
A "justified" discharge (one which
warrants forever barring reinstatement of
workers' compensation benefits) 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 reason 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 a permanent
forfeiture of those rights and benefits.
Eppling v. Schultz Dining Programs, 18 Va. App. 125, 128, 442
S.E.2d 219, 221 (1994) (citations omitted).
Applying the well established standard of review, we are
required to uphold the commission's factual findings when they
are supported by credible evidence. Code § 65.2-706; James v.
Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487,
488 (1989). Furthermore, any reasonable inferences the
commission draws from credible evidence "will not be disturbed
by this Court on appeal." Hawks v. Henrico County Sch. Bd., 7
Va. App. 398, 404, 374 S.E.2d 695, 698 (1988). The commission
accepted Martin's testimony and found as follows:
The claimant's negative attitude that
developed after his return to work was, in
part, related to the work injury. His
initial job enthusiasm upon returning to
selective work evolved into a poor attitude
after the claimant learned of his
supervisor's comments that drugs or alcohol
had contributed to the work injury and that
the company had failed to order safety
manuals after the accident. The claimant's
- 6 -
termination for having a poor attitude did
not rise to the level of justified cause.
Further, we find that the claimant did
not unjustifiably refuse selective
employment on May 12, 1999. It appears that
the employer withdrew its offer of selective
employment upon a determination that the
claimant's attitude was incompatible with
the business rules. The record does not
establish that the claimant attempted to
sabotage selective employment procured by
the pre-injury employer through
communicating his poor attitude. We note
again no evidence of deterioration in the
claimant's work performance during this
period.
Martin's testimony, which the commission found to be
credible, supports these findings. He testified that his
dissatisfaction arose from several events related to his job
related injury. Initially, he expressed his concern about
Transportation Safety's delay in paying his medical expenses,
which he believed threatened his credit standing. Martin also
voiced his concern about the division manager's inquiry
concerning allegations of Martin's possible drug and alcohol
use. The inquiry showed the allegation had no basis, but the
investigation caused Martin distress because his toxicology
reports established no drugs or alcohol in his system and the
accident was established to have been caused by the negligence
of another employee.
In addition, Martin testified that no safety manuals had
been given to employees prior to his injury and that the absence
of manuals contributed to his injury. Although the division
- 7 -
manager testified that there was a manual in his file and on a
desk outside his office, he acknowledged that Martin, who was a
foreman, may not have been made aware of those manuals. Martin
testified, however, that the office manager told him that she
had only requested safety manuals after his injury. He further
testified that "still, to this day; [he has] . . . never seen a
[safety] manual with Transportation Safety."
In Richmond Cold Storage Co. v. Burton, 1 Va. App. 106, 335
S.E.2d 847 (1985), we upheld the commission's ruling that an
employer's discharge of an employee "for misconduct does not
bind the Commission in its inquiry whether [the employee] is
precluded from claiming benefits due to a justified dismissal."
Id. at 109, 335 S.E.2d at 849. Later, in Eppling, we ruled that
not every discharge, even if supported by a reason, is a
"justified" discharge. 18 Va. App. at 128, 442 S.E.2d at 221.
The commission is required "to consider the nature of [the]
conduct," which is alleged to constitute the cause or to justify
the dismissal. Id. at 129, 442 S.E.2d at 221. Thus, we held
that even if the employer can assign a reason for discharge, not
every "type of willful conduct or misbehavior [arises to the
level] that, upon termination, justifies a forfeiture of
workers' compensation benefits [under Murphy]." 18 Va. App. at
130, 442 S.E.2d at 222.
Although the office manager testified in this case that
Martin made derogatory comments to her and was heard to have
- 8 -
made such comments to other employees concerning the staff and
the safety policies, the record indicates that neither the
office manager nor the division manager put any written warnings
or adverse comments in Martin's personnel file. The record also
indicates that Martin's comments primarily concerned the
employees involved in the incident of his injury.
Credible evidence also supports the commission's finding
that Martin's "negative attitude [arose] after [he] learned of
[the division manager's] comments that drugs or alcohol had
contributed to the work injury and that [Transportation Safety]
had failed to order safety manuals." Further, the record
contains credible evidence to support the commission's finding
that these issues are related to Martin's perceptions that his
accident was avoidable and that he was the subject of an
unjustifiable investigation into his character following an
accident that was caused by another employee's negligence.
Furthermore, Martin's behavior does not resemble the
behavior of the employees in Marval Poultry Co. v. Johnson, 224
Va. 597, 299 S.E.2d 343 (1983), or Goodyear Tire & Rubber Co. v.
Watson, 219 Va. 830, 252 S.E.2d 310 (1979). We used those cases
in Eppling to illustrate what constitutes justification for
terminating an employee on selective work status. In Marval
Poultry, the Supreme Court determined that an employer was
justified in dismissing an employee for his dishonesty. 224 Va.
at 601, 299 S.E.2d at 346. In Goodyear, the Court held that an
- 9 -
employer was justified in dismissing an employee for poor work
and excessive absenteeism. 219 Va. at 833, 252 S.E.2d at 313.
In this case, the evidence demonstrated that Martin was a
productive employee with no problems with truthfulness or
misconduct.
As the commission properly ruled, Code § 65.2-510(B) is
only applicable in cases where the employee unjustifiably
refuses selective employment. The division manager's
termination of Martin was a withdrawal of its selective
employment upon his belief that Martin's attitude was not
compatible with continued employment. We hold that the evidence
supports the commission's ruling that this reason does not
disqualify Martin for a continuation of benefits. Because we
affirm the commission's ruling that Martin did not unjustifiably
refuse employment, Transportation Safety's second issue is moot.
For these reasons, we affirm the commission's award.
Affirmed.
- 10 -