COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Senior Judge Hodges
Argued at Norfolk, Virginia
DEMETRICE DIANE ALLEN
MEMORANDUM OPINION * BY
v. Record No. 2178-95-1 JUDGE ROSEMARIE ANNUNZIATA
MAY 14, 1996
NEWPORT NEWS SHIPBUILDING &
DRY DOCK COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Robert J. Macbeth, Jr. (Rutter & Montagna, on
brief), for appellant.
Jonathan H. Walker (Melissa Robinson Link;
Mason & Mason, on brief), for appellee.
Claimant, Demetrice Diane Allen, appeals the decision of the
Virginia Workers' Compensation Commission reversing an award of
temporary total disability benefits. Claimant was discharged
from selective employment because she failed to maintain a
security clearance required by her position. On appeal, claimant
contends the commission erred in construing her discharge as an
unjustified refusal of selective employment and in finding she
had failed to cure her unjustified refusal. We affirm.
I
In January 1992, claimant sustained a compensable injury by
accident while working for employer, Newport News Shipbuilding &
Dry Dock Company. Employer subsequently procured selective
employment for claimant within her physical restrictions, and
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
claimant returned to work with employer in a capacity
commensurate with her physical ability.
As a condition of her employment, claimant was required to
maintain a security clearance. In December 1993, claimant lost
her security clearance and, as a result, was discharged. The
parties agree that claimant was discharged solely because her
clearance was revoked, not because of any disciplinary or
performance problem. Claimant testified that she lost her
clearance because she failed to maintain good credit.
The employment application claimant signed when she applied
for work with employer states, in part:
If employed by the company, I understand that
such employment is subject to the security
policies of the company. I further
understand and [sic] that if the position for
which I am hired requires access to
classified information and I am not able to
obtain a security clearance, I will not be
allowed to work in this position. My
employment with the company in a position not
requiring security clearance depends upon the
existence of such a position for which I am
qualified.
In response to claimant's interrogatories, employer stated that
it had some "administrative" positions in "Human Resources,
Accounting, Treasury, Payroll, Management Cafeteria, Workers
Compensation, Health Claims, etc." that did not require the
employee to maintain a security clearance. Claimant's supervisor
testified that, though an employee could not work in claimant's
department without a security clearance, he thought other
positions not requiring a security clearance existed elsewhere in
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the company. The supervisor did not determine whether such jobs
were available for claimant, and employer did not offer claimant
a job in which a security clearance was not required. She also
stated that she was not aware that such jobs existed and that she
had not applied for one.
Subsequent to her termination, claimant received
unemployment compensation while she looked for work. During the
nineteen weeks claimant received unemployment, she applied for
three jobs per week, seeking any position she could find.
Claimant testified that she applied for fifty-two jobs after her
unemployment benefits ceased in June 1994 until the date of the
hearing. However, she remained unemployed from the time she was
discharged through the date of the hearing, except for the period
November 19 to December 18, 1994. Claimant was scheduled to
start work April 15, 1995, the day after the hearing.
The deputy commissioner concluded that because claimant was
terminated solely because she lost a qualification for
employment, and not for wrongdoing, she had not unjustifiably
refused her selective employment. The deputy commissioner found
that the language in the employment application cited above
establishes that employer could have procured a position for
claimant which did not require a security clearance. Finding
that employer had not offered claimant such a position, the
deputy commissioner found that employer had withdrawn its offer
of selective employment. The deputy commissioner also found that
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claimant had made a reasonable effort to market her residual
capacity. Therefore, the deputy commissioner awarded claimant,
inter alia, (1) temporary total disability benefits from December
19, 1993 to November 18, 1994 and from December 19, 1994 to April
14, 1995; and (2) temporary partial disability benefits from
November 19 to December 18, 1994.
The full commission concluded that claimant's loss of her
security clearance amounted to an unjustified refusal of
selective employment. Except for the period from November 19 to
December 18, 1994, the commission found claimant's effort to
secure employment inadequate. Accordingly, the commission
reversed the temporary total benefits awards and affirmed the
temporary partial benefits award. Claimant appeals the
commission's reversal of temporary total disability benefits. We
affirm.
II
The initial question we must decide is whether claimant's
discharge, based solely on the revocation of her security
clearance, amounts to an "unjustified refusal of selective
employment," as the commission concluded, or to a withdrawal of
selective employment, as the deputy commissioner concluded. "The
[c]ommission's construction of the Act is entitled to great
weight on appeal, . . . [but] the `conclusions of the
[c]ommission upon questions of law, or mixed questions of law and
fact, are not binding.'" City of Waynesboro v. Harter, 1 Va.
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App. 265, 269, 337 S.E.2d 901, 903 (1985) (citations omitted).
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 Eppling v. Schultz Dining Programs, 18 Va. App.
125, 130, 442 S.E.2d 219, 222 (1994) (claimant discharged for
absenteeism caused by health problems unrelated to disability);
American Furniture Co. v. Doane, 230 Va. 39, 43, 334 S.E.2d 548,
550 (1985) (refusal of selective employment caused by unrelated
health problems); Marval Poultry Co., Inc. v. Johnson, 224 Va.
597, 599, 299 S.E.2d 343, 344 (1983) (claimant discharged for
dishonesty); Goodyear Tire & Rubber Co. v. Watson, 219 Va. 830,
833, 252 S.E.2d 310, 312-13 (1979) (claimant discharged for
unsatisfactory performance at selective employment); Potomac
Edison Co., Inc. v. Cash, 18 Va. App. 629, 631, 446 S.E.2d 155,
156 (1994) (claimant discharged for willful misconduct); cf.
Washington Metropolitan Transit Authority v. Harrison, 228 Va.
598, 600-01, 324 S.E.2d 654, 655-56 (1985) (where discharge from
selective employment due to economic conditions was, effectively,
a withdrawal of selective employment, entitling employee to a
resumption of compensation upon making a reasonable effort to
market his residual capacity); see generally A. Larson, The Law
of Workmen's Compensation § 57.64(a) (1995). 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
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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.
Eppling, 18 Va. App. at 130, 442 S.E.2d at 222. The standard for
finding an unjustified refusal is not wrongdoing on the part of
the employee that leads to discharge. See id. (claimant
discharged for absenteeism caused by health problems unrelated to
disability); Doane, 230 Va. at 43, 334 S.E.2d at 550 (refusal of
selective employment due to unrelated health problems).
Here, claimant was discharged from selective employment due
solely to her failure to maintain a security clearance, a reason
wholly unrelated to her disability and for which she alone was
responsible. We find that claimant's failure to maintain her
qualifications for the light duty work employer offered amounts
to an unjustified refusal of selective employment.
Claimant's argument that there can be no refusal of
selective employment without an offer of selective employment is
without merit. Employer clearly provided her selective
employment. Claimant cites no authority for her proposition
that, since other jobs were available at the shipyard that did
not require a security clearance, her discharge amounted to a
withdrawal of selective employment. Moreover, we find the
language in the employment agreement is not determinative. An
offer of selective employment was made, accepted, and later
"unjustifiably refused." Assuming, without deciding, employer
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had other positions available, it bore no duty to make a further
offer. See National Linen Service v. McGuinn, 8 Va. App. 267,
272 n.5, 380 S.E.2d 31, 34 n.5 (1989). 1
Accordingly, we conclude that the commission did not err in
construing claimant's discharge as an unjustified refusal of
selective employment.
III
Next, we must decide whether the commission erred in finding
claimant failed to cure her unjustified refusal of selective
employment. On appeal, the findings of fact made by the
commission will be upheld where supported by credible evidence.
E.g., James v. Capitol Steel Const. Co., 8 Va. App. 512, 515, 382
S.E.2d 487, 488 (1989).
An employee can "cure" an unjustified refusal of selective
employment, and thereby become entitled to a resumption of
benefits, by procuring employment paying a wage comparable to the
wage the employee earned at the job unjustifiably refused.
Burnette, 17 Va. App. at 79-80, 435 S.E.2d at 159-60; see also
Christiansen v. Metro Building Supply, Inc., 18 Va. App. 721,
1
We note that had employer not offered or procured selective
employment, or had it withdrawn the offer it made, claimant would
have been entitled to receive benefits upon showing she had made
a reasonable effort to market her residual capacity. See
Virginia Wayside Furniture, Inc. v. Burnette, 17 Va. App. 74, 79,
435 S.E.2d 156, 159 (1993); see Ellerson v. Grubb Steel Erection
Co., 1 Va. App. 97, 102, 335 S.E.2d 379, 382 (1985); cf.
Harrison, 228 Va. at 600-01, 324 S.E.2d at 655-56 (employee who
lost selective employment due to economic condition of employer
entitled to resumption of benefits after making reasonable effort
to market residual capacity).
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725, 447 S.E.2d 519, 521 (1994), rev'd on other grounds, 19 Va.
App. 513, 453 S.E.2d 302 (1995). An employee may also cure an
unjustified refusal of selective employment by making a good
faith effort to obtain suitable employment. Burnette, 17 Va.
App. at 79, 435 S.E.2d at 159. The rationale for such a rule is
apparent in the legislative intent of Code § 65.2-510: "to
encourage injured employees to seek selective employment rather
than to remain unemployed unless the employer finds such
employment for them." Id. (quoting Harrison, 228 Va. at 601, 324
S.E.2d at 656).
Claimant testified that, pursuant to directions from the
VEC, she applied for three positions per week for nineteen weeks.
However, she presented no evidence to show the dates of those
contacts, the potential employers she contacted, the points of
contact, the positions for which she applied, or whether the
positions were within her physical restrictions. Claimant
further testified that she applied for fifty-two positions after
her unemployment compensation ceased in June 1994 until the date
of the hearing. However, she presented no evidence to show the
dates of those contacts or whether the positions were within her
restrictions. Thus, we find that credible evidence supports the
commission's finding that claimant failed to cure her
unjustifiable refusal of selective employment by making a good
faith effort to obtain suitable employment during the periods
from December 19, 1993 to November 18, 1994 and from December 19,
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1994 to April 14, 1995.
Accordingly, the decision of the commission is affirmed.
Affirmed.
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Demetrice D. Allen v. Newport News Ship, etc.
Combined Opinion