ACUCAL, INC. v. SIENKIEWICZ, 2042-94-4, Unpublished (Va.App. 4-11-1995)


ACUCAL, INC. AND UNINSURED EMPLOYERS’ FUND v. ANNA M. SIENKIEWICZ

Record No. 2042-94-4Court of Appeals of Virginia. Argued at Alexandria, Virginia.
Decided: April 11, 1995

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Susan L. Herilla (John K. Coleman; Slenker, Brandt, Jennings Johnston, on brief), for appellant Acucal, Inc.

Gaye Lynn Taxey, Assistant Attorney General (James S. Gilmore, III, Attorney General; John J. Beall, Jr., Senior Assistant Attorney General, on brief), for appellant Uninsured Employers’ Fund.

Patrick H. Knight for appellee.

Present: Chief Judge Moon, Judge Fitzpatrick and Senior Judge Duff

MEMORANDUM OPINION[*]

[*] Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.

JUDGE JOHANNA L. FITZPATRICK.

Acucal, Inc. and the Uninsured Employers’ Fund (collectively referred to as employer) appeal the commission’s decision awarding benefits to Anna M. Sienkiewicz (claimant). Employer argues that the commission erred in finding that: (1) claimant unjustifiably refused selective employment and was not terminated for cause, and (2) claimant adequately marketed her remaining work capacity. We disagree and affirm the commission.

Claimant crushed her left middle finger while working for employer on June 4, 1992. Before her accident, claimant performed secretarial and delivery duties for employer. Claimant returned to light-duty work with employer on June 8, 1992, and her doctor restricted the use of her left hand. When claimant returned to work, her supervisor and employer’s president, Thomas Efaw (Efaw), took over the delivery duties.

Efaw gave claimant two warning reports on June 23, 1992, citing unsatisfactory work performance and disobedience of employer’s rules against having children in company vehicles. On July 7, 1992, claimant agreed to make a delivery to Washington, D.C. Claimant became lost and upset during the delivery, and when she returned to the office, she told Efaw that she would never make deliveries to Washington again.

The next day, Efaw told claimant that her position would be eliminated on August 28, 1992. On July 9, 1992, claimant told Efaw that she was tired of doing “shit details” such as rearranging the equipment on the shelves and that such work was not within her capacity. Efaw gave claimant a third warning report concerning her refusal to make deliveries to Washington and terminated her employment.

The commission found that: (1) by refusing to make deliveries to Washington, claimant refused selective employment provided by employer and was not fired “for cause,” and (2) claimant “cured” her refusal by registering with the Virginia Employment Commission and obtaining other jobs. The commission awarded benefits commencing August 28, 1992, the day employer intended to eliminate claimant’s position.

Code Sec. 65.2-510 provides as follows:

If an injured employee refuses employment procured for him suitable to his capacity, he shall only be entitled to the [medical] benefits provided for in Sec. 65.2-603 during the continuance of such refusal, unless in the opinion of the Commission such refusal was justified.

“An injured employee may ‘cure’ an unjustified refusal of selective employment provided or procured by the employer by accepting such employment or by obtaining comparable selective employment.” Timbrook v. O’Sullivan Corp., 17 Va. App. 594, 597, 439 S.E.2d 873, 875 (1994). However, “[w]here a disabled employee is terminated for cause from selective employment procured or offered by his employer, any subsequent wage loss is properly attributable to his wrongful act rather than his disability,” and he forfeits his right to compensation benefits. Chesapeake Potomac Tel. Co. of Va. v. Murphy, 12 Va. App. 633, 639-40, 406 S.E.2d 190, 193, aff’d en banc, 13 Va. App. 304, 411 S.E.2d 444 (1991). This Court held that excessive absenteeism caused by a non-work-related injury constituted an unjustified refusal and was not willful misconduct justifying a forfeiture of benefits. Eppling v. Schultz Dining Programs/Commonwealth, 18 Va. App. 125, 130-31, 442 S.E.2d 219, 222 (1994).

On appeal, “we review the evidence in the light most favorable to the prevailing party.” R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). “Factual findings of the . . . [c]ommission will be upheld on appeal if supported by credible evidence.” James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488
(1989).

In this case, credible evidence supports the commission’s findings that claimant unjustifiably refused employment and cured that refusal. Claimant’s refusal to make further deliveries to Washington, D.C. was the equivalent of refusing to perform the job. Like the excessive absences i Eppling, her conduct was not the type of willful misconduct that would justify total forfeiture of benefits. Additionally, claimant marketed herself by registering with the Virginia Employment Commission and obtaining various jobs after the termination of her employment.

The commission properly suspended claimant’s benefits during the period of unjustified refusal, July 9, 1992 to August 28, 1992.

Accordingly, the decision of the commission is affirmed.

Affirmed.