COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
THOMAS HODGE
MEMORANDUM OPINION *
v. Record No. 0817-98-2 PER CURIAM
SEPTEMBER 8, 1998
GREAT COASTAL EXPRESS AND PACIFIC
EMPLOYERS INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Robert L. Flax; Flax, Billy & Stout, on
brief), for appellant.
(David L. Epperly, Jr.; Epperly, Follis &
Schork, on brief), for appellees.
Thomas Hodge ("claimant") contends that the Workers'
Compensation Commission ("commission") erred in (1) suspending
his award of compensation benefits as of January 14, 1997,
because he unjustifiably refused selective employment; (2) not
allowing him to proffer pertinent evidence; and (3) not finding
that he cured any unjustified refusal of selective employment.
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.
I. Unjustified Refusal of Selective Employment
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 § 17-116.010 this opinion is not
designated for publication.
Findings of fact 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).
It was undisputed that Jenny Money, the rehabilitation
counselor assigned to claimant's case, found employment for
claimant at Young Express that fell within claimant's
restrictions.
Paul Gattal, who worked for Young Express in September 1996
as the personnel and safety director, testified that claimant was
hired by Young Express as a night dispatcher. Gattal testified
that claimant resigned from his job with Young Express after
giving the company an "ultimatum" that he would quit unless he
was permitted to go on a planned annual fishing trip on September
22, 1996. Gattal denied that Young Express had a policy allowing
a worker to take time off by obtaining a replacement worker.
Gattal acknowledged that claimant had done that on a previous
occasion and that claimant had been counselled not to follow that
procedure in the future. Gattal stated that Young Express
required its employees to request time off by submitting a
written request form, which had to be approved by an individual's
supervisor and the general manager. No such form existed in
claimant's personnel record. In addition, nothing in claimant's
personnel file indicated that he had ever complained about his
job or the company's business practices.
Claimant admitted that he resigned from his selective
- 2 -
employment because Young Express would not allow him to take the
day off from work on September 22, 1996 to go fishing.
In granting employer's application, the commission found as
follows:
[T]he evidence establishes that the claimant
resigned when he was denied time off from
work, not because of incidents regarding the
credit card or instructions to drivers or the
condition of the equipment. We conclude that
the reason for the claimant's resignation
does not constitute justification for
refusing selective employment.
Gattal's testimony, claimant's personnel file, and
claimant's admission that he resigned from his selective
employment because Young Express would not allow him to take a
day off to go fishing constitute credible evidence to support the
commission's finding that claimant unjustifiably refused
selective employment. "The fact that there is contrary evidence
in the record is of no consequence if there is credible evidence
to support the commission's finding." Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
II. Evidence
We find no merit in claimant's contention that the
commission erred in refusing to allow him to proffer evidence
regarding Gattal's alleged statements to claimant before the
hearing that Gattal quit Young Express because of its unsafe and
dishonest business practices.
"Evidence is admissible if it is both relevant and material.
'[E]vidence is relevant if it tends to establish the proposition
- 3 -
for which it is offered.' Evidence is material if it relates to
a matter properly at issue." Evans-Smith v. Commonwealth, 5 Va.
App. 188, 196, 361 S.E.2d 436, 441 (1987) (citation omitted).
The evidence offered by claimant and refused by the
commission was not relevant and material to the issue of whether
he unjustifiably refused selective employment. Claimant
testified that he resigned when Young Express would not allow him
to take a day off to go fishing. He did not assert that he
resigned due to Young Express' business practices, nor was there
any evidence to support such a finding. Thus, the commission did
not err in refusing to admit evidence of Gattal's alleged
statements to claimant before the hearing.
III. Cure of Unjustified Refusal of Selective Employment
On appeal, claimant argues that he cured any unjustified
refusal of selective employment after leaving Young Express.
Claimant did not raise this issue before the commission.
Accordingly, we will not consider it for the first time on
appeal. See Green v. Warwick Plumbing & Heating Corp., 5 Va.
App. 409, 413, 364 S.E.2d 4, 6 (1988); Rule 5A:18.
For these reasons, we affirm the commission's decision.
Affirmed.
- 4 -