County of Chesterfield v. Harry Overton, Jr.

• Court: Court of Appeals of Virginia
• Decided: November 16, 2021
• Docket: 0512212
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Chief Judge Decker, Judges Beales and Fulton Argued by videoconference

COUNTY OF CHESTERFIELD MEMORANDUM OPINION* BY v. Record No. 0512-21-2 JUDGE JUNIUS P. FULTON, III NOVEMBER 16, 2021 HARRY OVERTON, JR.

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Faraz A. Jindani (Brian A. Richardson; Ford Richardson, PC, on briefs), for appellant.

B. Mayes Marks, Jr. (Marks & Associates, P.C., on brief), for appellee.

The County of Chesterfield (employer) appeals a decision of the Workers’ Compensation

Commission awarding temporary total disability benefits to Harry Overton, Jr. (claimant).

Employer specifically takes issue with the Commission’s view that the termination for “just

cause” did not include its allegation of fraud and was limited to “poor job performance.”

Employer further asserts that the Commission erred by finding that claimant adequately

marketed his residual work capacity. For the following reasons, we affirm the Commission’s

decision on both issues.

I. BACKGROUND

Claimant suffered an accidental compensable injury on May 13, 2019, as he lifted a trash

bag while on duty as a maintenance worker with his employer, the County of Chesterfield. He

sustained a right rotator cuff injury as a result. The parties agreed to the award of medical

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. benefits and temporary total disability benefits beginning May 14, 2019, and continuing.

Subsequently, both parties petitioned the Commission for adjustments to those benefits.

Claimant filed a February 5, 2020 claim seeking temporary total disability from October 11,

2019, through January 12, 2020, and temporary partial disability beginning January 13, 2020,

and continuing. Employer filed its June 10, 2020 successive application for hearing. In this

successive application, employer sought a cessation of claimant’s benefits, alleging that claimant

was terminated for cause on October 10, 2019. In support of its claim of termination for cause,

employer specifically said in its cover letter that the termination was “based on poor job

performance” and in the supporting materials the basis for termination was stated as related to

“performance deficiencies.”

Following an evidentiary hearing, during which employer alleged and produced—for the

first time—evidence of fraud by claimant,1 the deputy commissioner found that termination due

to the fraud allegation was not properly before him and awarded temporary total disability

benefits for October 11, 2019, through December 28, 2019, and January 5, 2020, through

January 12, 2020. The deputy commissioner found that claimant adequately marketed his

remaining work capacity during the periods provided in the award, but not for December 29,

2019, through January 4, 2020. The full Commission affirmed, finding that employer’s

successive application for hearing “specified that claimant was ‘terminated based upon poor job

performance,’ and referenced attached exhibits.” In so finding, the Commission determined that

the evidence did not support a finding that the termination was based upon poor job performance.

The Commission elaborated and stated that the allegation of fraud and “the issue of the

1 Specifically, employer alleges claimant was terminated for fraud related to the reporting of his work hours by misrepresenting that he attended a compensated physical therapy session for which he only partially attended. -2- claimant’s termination for fraud was not raised in the application” and therefore “the

Commission cannot adjudicate an issue that is not before it.” The Commission further affirmed

the deputy commissioner’s finding that claimant adequately marketed his residual work capacity

for the periods of time noted by the deputy commissioner.

Employer filed its notice of appeal on May 14, 2021, claiming that it was error to

conclude that claimant was not terminated based on his poor work performance and that the

award of benefits was not supported by adequate evidence because claimant did not adequately

market his residual work capacity for the awarded periods. Employer stressed that its successive

application properly raised the issue of termination for fraud generally, including the claimant’s

termination for fraudulently reporting his time on his timesheet.

II. STANDARD OF REVIEW

“On appeal from a decision by the Workers’ Compensation Commission, this Court

views the evidence in the light most favorable to the prevailing party below.” Loudoun County

v. Richardson, 70 Va. App. 169, 175 (2019). “The Commission’s factual findings, if supported

by credible evidence, are binding on appeal.” Id. See Code § 65.2-706(A). “In determining

whether credible evidence exists, the appellate court does not retry the facts, reweigh the

preponderance of the evidence, or make its own determination of the credibility of the

witnesses.” United Airlines, Inc. v. Sabol, 47 Va. App. 495, 501 (2006) (quoting Pruden v.

Plasser Am. Corp., 45 Va. App. 566, 574-75 (2005)). “If there is evidence or reasonable

inference that can be drawn from the evidence to support the Commission’s findings, they will

not be disturbed by [the] Court on appeal, even though there is evidence in the record to support

contrary findings of fact.” Richardson, 70 Va. App. at 176 (quoting Caskey v. Dan River Mills,

Inc., 225 Va. 405, 411 (1983)). “Such deference to the Commission does not extend to questions

of law, which we review de novo.” Anderson v. Anderson, 65 Va. App. 354, 361 (2015). -3- On appeal, this Court will also “accord great deference to the interpretation given by the

[C]omission to its rules.” Summit Pharmacy v. Costco Wholesale, 73 Va. App. 96, 108 (2021)

(quoting Arellano v. Pam E. K’s Donuts Shop, 26 Va. App. 478, 483 (1998)). Consequently,

“our review is limited to a determination whether the [C]ommission’s interpretation of its own

rule was reasonable.” Id. (quoting Classic Floors, Inc. v. Guy, 9 Va. App. 90, 93 (1989)). Thus,

we “will not set aside the [C]ommission’s interpretation of its rules unless that interpretation is

arbitrary and capricious.” See Diaz v. Wilderness Resort Ass’n., 56 Va. App. 104, 114 (2010).

III. ANALYSIS

A. The Commission did not err in determining that the basis for termination offered in employer’s successive application was limited to poor job performance.

On appeal, employer argues that its successive application generally alleged “for cause”

grounds and that the Commission erroneously placed more weight on its cover letter asserting

“poor job performance” than on the language in the successive application itself. If only its

successive application was considered, employer argues that its claim of fraud would have been

encapsulated in the “for just cause” grounds listed in the application. For these reasons employer

argues that the Commission erred in determining that claimant was terminated for a reason other

than poor job performance. We disagree.

The issue before the Commission was not, as employer tries to make it, whether fraud

was a factor in claimant’s termination or whether fraud is a justified basis for terminating an

employee. If those were the questions below, the rulings in this case very well could have been

different. Instead, the issue on appeal is a procedural one—did employer properly identify fraud

as a basis for the claimant’s termination in the employer’s successive application and supporting

termination paperwork? To this, the answer is no.

-4- Employer’s successive application for hearing sought to suspend benefits on the basis

that the “[c]laimant was terminated for just cause effective 10/10/2019, wage loss after this date

is no longer causally related to subject work accident.” Exhibit 1 thereto was a “Chesterfield

County Report of Separation” in which the “Reason for Separation” section of the report marked

“Probationary Release (Full-time only)” stated, in part: “[Claimant] failed to meet the

performance expectations of a Principal maintenance Worker.” The termination paperwork

clearly points to poor work performance as the “cause” for the termination, but the testimony at

the hearing told a different story. Mr. Cooke, claimant’s former supervisor, testified that

fraud—not the other “minor things” cited by employer—was “the major thing” leading to the

termination. The Commission determined that Mr. Cooke’s testimony was clear that it was the

fraud that precipitated the consult with Human Resources and claimant’s ultimate termination.

In seeking a modification of an award, an employer has the burden of proof. As noted in

the rulings below, all that is required to establish a termination for cause and a forfeiture of

subsequent compensation benefits is a showing (1) that the wage loss is properly attributable to

the wrongful act and (2) that the employee is responsible for that wrongful act. Shenandoah

Motors v. Smith, 53 Va. App. 375, 386 (2009) (citing Artis v. Ottenberg’s Bakers, 45 Va. App.

72, 85 (2005)).

When viewed in its entirety, employer’s successive application sought cessation of

benefits based on claimant’s termination for poor work performance. Neither the successive

application nor the attached documents mentioned that claimant fraudulently reported his time.

The reason for separation, attached to employer’s successive application, is specific that the

termination was for performance-related reasons. An employer must show that the termination

was justified in order to be entitled to a modification of an award. There was not sufficient

-5- support in the record to support a termination for poor work performance as alleged by employer

in its application and supporting materials.

The Commission’s ruling is not as draconian as employer portrays in its briefing.

Employer had the burden of establishing a justified basis for the termination and, by the own

testimony of claimant’s supervisor, the termination was not for the basis claimed by employer.

Employer could have corrected its mistake by making its application clear or providing

supporting materials at the time of filing to show that fraud was the basis for the termination.

See Cent. Virginia Training Ctr. v. Martin, 2 Va. App. 188, 193 (1986). Employer did not.

The Commission found that employer can only rely on the basis of termination that it

pled in its application. Rule 1.4(A) of the Commission specifies that “An employer’s application

for hearing, shall be in writing and shall state the grounds and relief sought.” In interpreting its

own rule, the Commission rejected employer’s successive application because the only basis

given in the application and supporting documents was “performance” related. Nowhere in the

application or the supporting materials did employer mention fraud, yet it was clear at the

hearing that fraud was the basis of the termination. The factual record supports the

Commission’s conclusion that the alleged fraud and not the claimant’s minor infractions were

the basis for the termination and that a termination based on the alleged fraud was not properly

before the deputy commissioner. Rule 1.4 does not require painstaking specificity, but

where—as here—there is a distinction with a difference that made the application and the

evidence at trial diverge, then such distinction should be reflected in employer’s successive

application and supporting materials. In light of the pleadings of employer, the Commission

stated that it “cannot adjudicate an issue that is not before it.” And, for purposes of this appeal,

the Court of Appeals “will not set aside the [C]ommission’s interpretation of its rules unless that

-6- interpretation is arbitrary and capricious.” See Diaz, 56 Va. App. at 114. The Commission’s

finding on this issue was not arbitrary and capricious.

B. The Commission’s award of temporary total disability was correct.

Employer also argues that the award of benefits was in error because claimant did not

adequately market his residual work capacity for the relevant periods. We again disagree. In

viewing the record in the light most favorable to claimant, credible evidence exists to support the

Commission’s award of benefits for the designated periods.

“On appeal, ‘we view the evidence in the light most favorable to the prevailing party

before the [C]ommission’” and “‘defer to the [C]ommission in its role as fact finder . . . .’”

Paramont Coal Co. Va., LLC v. McCoy, 69 Va. App. 343, 349-50 (2018) (alterations in original)

(quoting Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 72 (2003)). As to whether an award of

benefits is appropriate, “[a] partially incapacitated employee, absent an award from the

Commission, is not entitled to temporary total disability benefits unless he has made a reasonable

effort to market his remaining work capacity.” White v. Redman Corp., 41 Va. App. 287, 292

(2003) (citing Wash. Metro. Area Transit Auth. v. Harrison, 228 Va. 598, 600-01 (1985)). “An

employee must ‘exercise reasonable diligence in seeking employment’ and the reasonableness of

an employee’s effort will be determined on a case by case basis, taking into account ‘all of the

facts and surrounding circumstances.’” Ford Motor Co. v. Favinger, 275 Va. 83, 89-90 (2008).

In determining whether credible evidence exists, this Court does not retry the facts, reweigh the

evidence, or make its own determination of the witnesses’ credibility. Smith-Adams v. Fairfax

Cnty. Sch. Bd., 67 Va. App. 584, 590 (2017).

Employer cursorily argues that claimant did not act in good faith because he applied for

jobs that were outside his capabilities. But employer does not point to which jobs were outside

of claimant’s abilities and how that factors into the “reasonable efforts” analysis required to be -7- conducted. See Herbert Bros., Inc. v. Jenkins, 14 Va. App. 715, 717 (1992). Instead, employer

simply makes a blanket claim that there was “no testimony insinuating that he thoroughly

reviewed his marketing evidence.” The Commission disagreed and considered the marketing

efforts of claimant given his “age, work restrictions, education, and employment experience.”

As the Commission noted, the advisory marketing guidelines published by the Commission

suggest a partially disabled employee should contact “at least five potential employers per week

where the employee has reasonable basis to believe there might be a job available that he might

be able to perform.” Based on claimant’s marketing log and testimony, the Commission found it

“reasonable that [claimant] believed there might have been a job within his restrictions available

with the employers he contacted.” We are satisfied with the Commission’s evaluation of the

evidence before it. Because credible evidence exists on the record and such evidence was

considered by the Commission, there should be no disruption to the result on appeal.

Richardson, 70 Va. App. at 175 (“The Commission’s factual findings, if supported by credible

evidence, are binding on appeal.”). Hereto we affirm.

IV. CONCLUSION

We hold that the Commission did not err in affirming the deputy commissioner’s findings

that employer’s successive application was limited to poor job performance and in awarding

temporary total disability benefits. There was adequate evidence in the record to support both

findings. Accordingly, we affirm the Commission’s decision.

Affirmed.

-8-