COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Humphreys
WORLD COLOR RETAIL AND
INSURANCE COMPANY OF THE STATE
OF PENNSYLVANIA
MEMORANDUM OPINION*
v. Record No. 0059-00-4 PER CURIAM
MAY 16, 2000
BONNIE MAE PELZER-PUGLIESE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Dana L. Plunkett; Semmes, Bowen & Semmes,
P.C., on brief), for appellants.
(James F. Green; Ashcraft & Gerel, on brief),
for appellee.
World Color Retail and its insurer (hereinafter referred to
as "employer") contend that the Workers' Compensation Commission
erred in finding that Bonnie Mae Pelzer-Pugliese (claimant) was
not terminated for cause while on selective employment, and,
therefore, did not forfeit her rights to compensation benefits.
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.
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
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
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.
Eppling v. Schultz Dining Programs, 18 Va. App. 125, 128, 442
S.E.2d 219, 221 (1994) (quoting Richmond Cold Storage Co. v.
Burton, 1 Va. App. 106, 111, 335 S.E.2d 847, 850 (1985)). "The
reason for the rule is that the wage loss is attributable to the
employee's wrongful act rather than the disability." Timbrook
v. O'Sullivan Corp., 17 Va. App. 594, 597, 439 S.E.2d 873, 875
(1994).
An employee's "wrongful act" is the linchpin for a
"justified" discharge--one which warrants forever barring
reinstatement of workers' compensation benefits. See Eppling,
18 Va. App. at 128-29, 442 S.E.2d at 221-22. Simply identifying
or assigning "a reason attributable to the employee as the cause
for his or her being discharged" is not sufficient to establish
a forfeiture of benefits. Id. at 128, 442 S.E.2d at 221.
In ruling that employer's termination of claimant was not
for "justified cause" such as to warrant a forfeiture of
benefits, the commission found as follows:
The claimant testified that she
requested, to no avail, a repeat drug
screen, because of what she believed to be a
risk of a false positive based on her use of
prescription drugs for her injury. She also
adamantly denied any use of drugs or alcohol
between the time of her injury and the drug
screen. There was no evidence of any drug
use other than the results of the drug
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screen. The results of the drug screen,
however, were introduced by the employer
through the claimant, who was unable to
attest to their veracity or authenticity.
The deputy commissioner also specifically
found that the claimant's denial of drug use
was credible. Accordingly, we find that the
claimant's termination was not for
"justified cause" such that her compensation
benefits should be forfeited.
(Footnote omitted.)
The commission's findings involve mixed questions of law
and fact reviewable on appeal. See Helmick v. Economic
Development Corp., 14 Va. App. 853, 855, 421 S.E.2d 23, 24
(1992). However, we are bound by the commission's underlying
findings of fact if credible evidence supports them.
Claimant's testimony and the testimony of her co-worker,
Kevin O'Connor, provide credible evidence to support the
commission's findings. As fact finder, the commission was
entitled to conclude that claimant's testimony regarding her
requests for a repeat test and her denial of any drug or alcohol
use was credible. In addition, in light of the lack of any
evidence attesting to the veracity or authenticity of the drug
screen, the commission was entitled to give little probative
weight to the results of the drug screen. Based upon the
commission's factual findings, it could reasonably conclude that
claimant was not terminated for a justified cause as required
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for a termination of benefits. Accordingly, we affirm the
commission's decision.
Affirmed.
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World Color Retail, etc.v Bonnie M.Pelzer-Pugliese
Combined Opinion