COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Overton
Argued at Alexandria, Virginia
STAFFORD COUNTY AND VIRGINIA MUNICIPAL
GROUP SELF INSURANCE ASSOCIATION
v. Record No. 0830-95-4 MEMORANDUM OPINION * BY
JUDGE NELSON T. OVERTON
PEGGY LEE SMITH MARCH 12, 1996
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Ralph L. Whitt, Jr. (Jennifer G. Marwitz;
Sands, Anderson, Marks & Miller, on briefs),
for appellants.
Robert B. Adams (Ashcraft & Gerel, on brief),
for appellee.
Stafford County, employer, and Virginia Municipal Group Self
Insurance Association, insurer, appeal from the commission's
award of benefits to Peggy Smith, a former employee. The
appellants contend that (1) Smith's psychological problems were
not causally related to her work-related injury, (2) Smith was
terminated for cause such that she is barred from future
compensation, and (3) Smith has not cured her unjustified refusal
of selective employment. We find that credible evidence supports
the decision of the commission, and we affirm the award.
Smith sustained a work-related injury to her neck while
employed as an emergency medical technician. Two months later
she "had a break-down of sorts" at work which resulted in her
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
detention at a psychiatric hospital. She was later fired from
her job for behavior leading up to the break-down.
Smith filed a Change in Condition Application with the
commission, alleging that her psychological problems were caused
by her work-related physical injury. The commission awarded
benefits based on the unequivocal, uncontradicted opinion of the
treating psychiatrist. Her employer appeals.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). "[I]t
is fundamental that a finding of fact made by the Commission is
conclusive and binding upon this court on review. A question
raised by conflicting medical opinion is a question of fact."
Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533
(1986). "The fact that contrary evidence may be found in the
record is of no consequence if credible evidence supports the
commission's finding." Manassas Ice & Fuel Co. v. Farrar, 13 Va.
App. 227, 229, 409 S.E.2d 824, 825 (1991).
The treating psychiatrist at the hospital expressed his
expert opinion in his Final Summary that Smith's problems were
related to her accident. He reaffirmed this opinion in
subsequent letters sent to Stafford County Personnel Office. He
further reiterated his position in his deposition. The doctor's
opinion was cogent, well-reasoned, and uncontradicted by any
other medical opinion. On this evidence the commission found
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that Smith's earlier injury caused her later problems.
The employer also argues that Smith's behavior was so
willful as to bar her from future compensation. In light of the
commission's factual finding that Smith was in a severe
depression brought on by her work-related injury, we do not
agree. The treating physician's records demonstrate that Smith's
mood and attitude prior to her arrival at the psychiatric
hospital were symptoms of her depression. The commission
concluded that Smith's actions were the product of these
resultant symptoms and therefore were not willful or intentional.
As credible evidence supports this finding, we do not disturb
it.
We further disagree that Smith failed to cure her
unjustified refusal of selective employment. The employer's sole
complaint on this issue is that Smith's new position pays
substantially less than her former position. The employer does
not allege that Smith's new position is inappropriate to her
career, nor does the employer question the sincerity or quality
of Smith's efforts to find a position within her residual
capacity. "Whether an employee has made a reasonable effort to
market his remaining work capacity is determined by an objective
standard of reasonableness and depends on the particular
circumstances of each situation." Virginia Wayside Furn. v.
Burnette, 17 Va. App. 74, 79, 435 S.E.2d 156, 160 (1993);
National Linen Serv. v. McGuinn, 8 Va. App. 267, 270-72, 380
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S.E.2d 31, 33-34 (1989). Although Smith's new wage is less than
her former wage, the employer introduced no evidence that this
wage was abnormally low for a position in Smith's career field.
The medical evidence before the commission supports the
finding of causation between Smith's work-related physical injury
and her later psychological problems. The record further supports
the commission's decision on both the termination and cure
issues.
Affirmed.
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ANNUNZIATA, R., dissenting.
I dissent from the majority opinion with respect to the
issue of whether the claimant's termination for cause bars her
from an award of temporary partial benefits.
While the evidence supports the majority's conclusion that
the commission did not err in determining that the claimant's
depression was related to and caused by her earlier work-related
physical injury to her neck, nothing in the record establishes
that the claimant's conduct which resulted in her termination was
caused by her depression. Specifically, the record fails to show
that claimant's insubordinate, threatening, and abusive conduct
in response to her employer's questions about a suspected
violation of her probationary status was the result of her
depression.
Five months before the claimant's termination, she was put
on probation for a six-month period for insubordination, creating
a hostile, abusive, and threatening work environment, creating
dissension among the employees, and invading another employee's
privacy by reading his mail. Approximately one month later,
claimant suffered her job-related neck injury which she claimed,
and which the commission agreed, caused her subsequent
depression. The claimant was terminated for behavior of the same
nature as that which resulted in her probation, including her
violation of another employee's privacy by reading the employee's
mail. Given this evidence and the absence of any evidence
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whatsoever, medical or otherwise, to connect claimant's
depression to the misconduct leading to her termination, the
commission could only speculate that her behavior was caused by
her depression and therefore was not willful. Accordingly, I
would reverse the commission's decision that claimant's discharge
constitutes an "unjustified refusal of light duty employment."
Cf. Eppling v. Schultz Dining Programs, 18 Va. App. 125, 129-30,
422 S.E.2d 219, 221-22 (1994).
Moreover, in my opinion, even assuming (1) claimant's
discharge can be properly treated as an "unjustified refusal of
light duty employment"; and (2) claimant properly "cured" her
unjustified refusal, the commission's award of temporary partial
benefits based upon her current earnings should be reversed.
Under Code § 65.2-502, compensation for partial incapacity is
calculated according to the "difference between [the employee's]
average weekly wages before the injury and the average weekly
wages which he is able to earn thereafter." In the case of an
employee who has cured an unjustified refusal, the wage earned at
the employment unjustifiably refused is clearly a wage that
employee is "able to earn." Therefore, the award should not have
been based on her earnings at her current job but rather on the
1
wage she earned at her selective employment.
1
I note that the commission's decision, on this point,
starkly contradicts its other recent decisions under similar
facts. See Ketron v. Reese Tile & Floor Covering, Inc., V.W.C.
File No. 158-67-80 (February 27, 1995); Waters v. Colonial Block
of Norfolk, Inc., V.W.C. File No. 128-00-86 (December 30, 1994).
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To hold otherwise would allow an employee at
any time to abandon selective employment
being tendered by the employer for a position
of his own choosing which would require the
employer to be responsible for increased
partial compensation which it would not have
to pay had the employe[e] accepted the work
available to him from the employer. . . . [In
such a case] the employee's loss of earnings
is not . . . due to his injury but is due to
his unjustifiably abandoning the selective
employment.
Lawhorne v. H.F. Interiors, Inc., 68 O.I.C. 176, 178 (1989); see
also Burnette, 17 Va. App. at 79, 435 S.E.2d at 160. 2
Accordingly, I would reverse.
2
I note that Code § 65.2-510(B), as amended in 1995, would
direct the same result reached in this dissent.
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Stafford County v. Peggy Lee Smith
Combined Opinion