Bryon Lee West v. Best Products Co.

• Court: Court of Appeals of Virginia
• Decided: January 28, 1997
• Docket: 1556962
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Overton Argued at Richmond, Virginia

BRYON LEE WEST MEMORANDUM OPINION * BY v. Record No. 1556-96-2 JUDGE ROSEMARIE ANNUNZIATA JANUARY 28, 1997 BEST PRODUCTS COMPANY, INC. AND HARTFORD UNDERWRITERS INSURANCE COMPANY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION B. Mayes Marks, Jr. (B. Mayes Marks, Jr., P.C., on brief), for appellant.

P. Dawn Bishop (Sands, Anderson, Marks & Miller, P.C., on brief), for appellees.

Claimant, Bryon Lee West, worked as a warehouseman for

employer, Best Products Company, Inc., for twenty years; in

February 1993 he suffered a compensable injury. Claimant

initially received temporary total disability benefits, which

were reduced to temporary partial benefits upon his return to

selective employment provided by employer in March 1993. In May

1993, the temporary partial benefits were suspended when claimant

resumed earning his pre-injury wage. Employer discharged

claimant on December 31, 1994, and claimant thereafter applied

for a resumption of benefits. The commission denied his claim,

finding claimant had been discharged for "justified cause."

Finding no error, we affirm. When a disabled employee is discharged * Pursuant to Code § 17-116.010 this opinion is not designated for publication. 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.

In the present case, the commission found that claimant's

excessive tardiness provided employer "justified cause" to

discharge him. That finding involves a mixed question of law and

fact reviewable on appeal. E.g., 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

- 2 - credible evidence supports them.

The commission found that claimant was terminated for cause

because of excessive tardiness, noting that he had "compiled an

unacceptable record of tardiness" from May 1993 through December

1994. Documentary evidence as well as the testimony of

claimant's supervisor showed that claimant had been admonished

for tardiness in October 1993, March 1994, April 1994, August

1994 and as early as 1984. The supervisor described claimant's

tardiness as "chronic" and "habitually [occurring] throughout his

tenure." The evidence shows that claimant's tardiness followed a

pattern. After being admonished, claimant would at first report

on time. Gradually, however, claimant's tardiness would resume

until it reached nearly four of five days a week, at which point

he would again be admonished. Each time he was admonished,

claimant was told that his tardiness would lead to a three-day

suspension and eventual termination. Claimant was suspended

because of his tardiness for one day in March 1994. With each

subsequent admonishment, claimant was notified that continued

tardiness would result in a three-day suspension. Claimant

agreed that he had a "heck of a lot of problems [with tardiness]

prior to [August 1994.]" Claimant's supervisor and another

representative of employer both testified that claimant was

terminated due to his excessive tardiness. Claimant did not

receive a three-day suspension. Claimant argues that the case must turn on the evidence of

- 3 - his tardiness subsequent to August 1994, during which period he

testified that he had no further tardiness problems. Claimant

further described a performance evaluation conducted in September

1994 which did not address tardiness and which relayed that he

was doing a "real, real, good job."

Notwithstanding the absence of evidence documenting

claimant's tardiness subsequent to August 1994, credible evidence

supports the commission's finding that claimant was discharged

for cause. The evidence established patterns of tardiness over a

prolonged period and repeated admonishment by employer that

continued tardiness would result in termination. Furthermore,

the commission was entitled to credit the testimony of employer's

representatives that claimant had been discharged as a result of

his tardiness. Other evidence, namely claimant's testimony that his

tardiness had ceased subsequent to August 1994 and the fact that

employer did not suspend claimant for three days as it had

warned, arguably supports the proposition that employer fired

claimant for reasons unrelated to his tardiness. However, that

contrary evidence may appear in the record "is of no consequence

if there is credible evidence to support the commission's

finding." Wagner Enterprises, Inc. V. Brooks, 12 Va. App. 890,

894, 407 S.E.2d 32, 35 (1991). 1 1 In his brief, claimant argues that employer condoned his tardiness by not discharging him for four months following the last evidence of his tardiness. See Robinson v. Hurst Harvey Oil, Inc., 12 Va. App. 936, 407 S.E.2d 352 (1991). However, this

- 4 - The commission further found claimant's discharge for cause

was "justified." The commission found no evidence that

claimant's tardiness resulted from events or circumstances beyond

his control. Cf. Eppling, 18 Va. App. at 129-30, 442 S.E.2d at

222. Claimant testified that his tardiness resulted from his

taking medication, Lodine, for his work-related injury. He

claimed the Lodine made him tired and sluggish and resulted in

his having difficulty getting to work on time. The commission

affirmed the deputy commissioner's finding that claimant's

testimony concerning the side effects of his medication was

unpersuasive to explain his chronic tardiness. Furthermore, no

evidence proved that the claimant sought to have his physician

adjust his medication. Thus, the commission was entitled to

discredit claimant's testimony, and we find no further support

for the suggestion that claimant's tardiness resulted from the

Lodine or any other factor beyond claimant's control. The decision of the commission is accordingly affirmed. Affirmed.

(..continued) argument is procedurally barred; no reference to condonation was made before either the deputy commissioner or the full commission. Rule 5A:18.

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