COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Duff
TAMMY J. TAYLOR
MEMORANDUM OPINION*
v. Record No. 1963-00-3 PER CURIAM
DECEMBER 12, 2000
JAMES MADISON UNIVERSITY AND
COMMONWEALTH OF VIRGINIA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(A. Thomas Lane, Jr., on brief), for
appellant.
(Mark L. Earley, Attorney General; Judith
Williams Jagdmann, Deputy Attorney General;
Gregory E. Lucyk, Senior Assistant Attorney
General; Donald G. Powers, Assistant Attorney
General, on brief), for appellees.
Tammy J. Taylor contends that the Workers' Compensation
Commission erred in denying her claim for an award of temporary
total disability benefits for the period from August 14, 1999
through August 26, 1999. 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.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
The commission denied Taylor an award of temporary total
disability benefits for the period from August 14, 1999 through
August 26, 1999 on the ground that her discharge constituted an
unjustified refusal of selective employment. As support for its
ruling, the commission found as follows:
[C]laimant, age 37, injured her back, neck,
and shoulder while lifting trash into a
dumpster on July 13, 1999. The claim was
accepted as compensable, and the claimant
underwent physical therapy for neck and back
strain. She was released to full duty on
August 26, 1999. She was working for
employer in a light duty capacity when on
August 13, 1999, she left work because she
soiled her clothing. When the claimant
returned to work four hours later, she was
terminated for excessive absenteeism. As a
new employee, she was still on probation
with the employer.
Vickie Dovel, the claimant's
supervisor, stated that the claimant
received a verbal warning about absenteeism
on July 15, 1999. The claimant began her
employment with the employer on June 10,
1999. She was absent on June 10 and 11 for
a death in the family. Prior to her injury,
she missed June 23, June 29, June 30 and
July 12, 1999, for various reasons. She
missed work on August 6, 1999, for a family
illness and on August 13, 1999, she was gone
from work for four hours because she soiled
her clothes twice. She lived one-half hour
from work.
These findings are supported by credible evidence. Thus,
these findings are binding and conclusive upon us.
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Based upon this record, the commission did not err in
concluding that Taylor's excessive absenteeism, unrelated to her
injury, constituted an unjustified refusal of selective
employment, and in denying her benefits for the period from
August 14, 1999 through August 26, 1999. In Eppling v. Schultz
Dining Programs, 18 Va. App. 125, 442 S.E.2d 219 (1994), we
recognized that "[a]lthough Eppling's employer had 'cause' for
terminating her selective employment due to excessive
absenteeism, her absences were due to health problems and not
due to 'wrongful act[s]' that 'justified' her dismissal so as to
permanently deprive Eppling of having her workers' compensation
benefits reinstated." Id. at 129, 442 S.E.2d at 222. Under
Eppling, a discharge for "cause" related to excessive
absenteeism, although not constituting a wrongful act that
justifies permanent forfeiture of benefits, is sufficient to
find an unjustified refusal of selective employment. See id. at
130, 442 S.E.2d at 222. Such a finding bars the employee from
receiving benefits until the employee takes sufficient steps to
"cure" the refusal. See id. at 130-31, 442 S.E.2d at 222.
For these reasons, we affirm the commission's decision.
Affirmed.
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