Chewning & Wilmer Construction, et al. v Crump

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COURT OF APPEALS OF VI RGN A

Present: Judge Bray, Senior Judges Cole and Overton
Argued at Richnond, Virginia

CHEWN NG & WLMER CONSTRUCIT ON
AND
PHOFN X I NSURANCE COVPANY
MEMORANDUM OPI N ON* BY
Vv. Record No. 0993- 99- 2 J UDGE NELSON T. OVERTON
J ANUARY 27, 2000
OORI NTH A D. CRUMP
FROM THE VI RGl NA WORKERS' CONVPENSATT ON COMM SSI ON

Warren H Britt (Mchael P. Del Bueno;
Britt ©& Gnapp, on brief), for appellants.

Gerald G Lutkenhaus for appellee.

Chewning & Wl ner Construction and its insurer (hereinafter
referred to as "“enployer") appeal a decision of the Wrkers
Conpensation Conmssion (conmmssion) awarding tenporary total
disability benefits to Corinthia D Crump (clainant) for the
period fromApril 20, 1998 through June 17, 1998 and tenporary
partial disability benefits commencing June 18, 1998 and
continuing. Enployer contends that the conmssion erred in
finding that it failed to prove that claimant was termnated for
justified cause fromselective enploynent on January 28, 1998,

thereby barring her fromreceiving benefits under the Wrkers'

* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

Compensation Act. 	Finding no error, we affirm the commission's
decision.
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
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 the present case, the commission found that "the
evidence fails to establish that claimant was terminated for
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justified cause such as to preclude her from receiving further
compensation benefits." 	That finding involves a mixed question
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.
The commission found that the evidence established that
claimant's absences were due to her need for medical attention
and physical therapy or because she was unable to work due to
back pain which was related to her compensable injury by
accident. 	The commission further found that claimant did not
fail to report her absences to employer and that prior to her
termination date, employer had never reprimanded or warned
claimant regarding her absenteeism.
The commission's factual findings are amply supported by
claimant's unrebutted testimony, employer's records, and the
medical records. 	As fact finder, the commission was entitled to
conclude that claimant's testimony regarding the reasons for her
absences and the circumstances surrounding her notification to
employer of those absences was credible. 	Based upon the
commission's factual findings, it could reasonably conclude that
claimant was not terminated for a justified cause as required
for a termination of benefits.
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Accordingly, we affirmthe conmssion's decision.

Af firned.