Demetrice D. Allen v. Newport News Ship, etc.

• Court: Court of Appeals of Virginia
• Decided: May 14, 1996
• Docket: 2178951
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Annunziata and Senior Judge Hodges Argued at Norfolk, Virginia

DEMETRICE DIANE ALLEN MEMORANDUM OPINION * BY v. Record No. 2178-95-1 JUDGE ROSEMARIE ANNUNZIATA MAY 14, 1996 NEWPORT NEWS SHIPBUILDING & DRY DOCK COMPANY

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION Robert J. Macbeth, Jr. (Rutter & Montagna, on brief), for appellant.

Jonathan H. Walker (Melissa Robinson Link; Mason & Mason, on brief), for appellee.

Claimant, Demetrice Diane Allen, appeals the decision of the

Virginia Workers' Compensation Commission reversing an award of

temporary total disability benefits. Claimant was discharged

from selective employment because she failed to maintain a

security clearance required by her position. On appeal, claimant

contends the commission erred in construing her discharge as an

unjustified refusal of selective employment and in finding she

had failed to cure her unjustified refusal. We affirm.

I

In January 1992, claimant sustained a compensable injury by

accident while working for employer, Newport News Shipbuilding &

Dry Dock Company. Employer subsequently procured selective

employment for claimant within her physical restrictions, and * Pursuant to Code § 17-116.010 this opinion is not designated for publication. claimant returned to work with employer in a capacity

commensurate with her physical ability.

As a condition of her employment, claimant was required to

maintain a security clearance. In December 1993, claimant lost

her security clearance and, as a result, was discharged. The

parties agree that claimant was discharged solely because her

clearance was revoked, not because of any disciplinary or

performance problem. Claimant testified that she lost her

clearance because she failed to maintain good credit. The employment application claimant signed when she applied

for work with employer states, in part: If employed by the company, I understand that such employment is subject to the security policies of the company. I further understand and [sic] that if the position for which I am hired requires access to classified information and I am not able to obtain a security clearance, I will not be allowed to work in this position. My employment with the company in a position not requiring security clearance depends upon the existence of such a position for which I am qualified.

In response to claimant's interrogatories, employer stated that

it had some "administrative" positions in "Human Resources,

Accounting, Treasury, Payroll, Management Cafeteria, Workers

Compensation, Health Claims, etc." that did not require the

employee to maintain a security clearance. Claimant's supervisor

testified that, though an employee could not work in claimant's

department without a security clearance, he thought other

positions not requiring a security clearance existed elsewhere in

- 2 - the company. The supervisor did not determine whether such jobs

were available for claimant, and employer did not offer claimant

a job in which a security clearance was not required. She also

stated that she was not aware that such jobs existed and that she

had not applied for one.

Subsequent to her termination, claimant received

unemployment compensation while she looked for work. During the

nineteen weeks claimant received unemployment, she applied for

three jobs per week, seeking any position she could find.

Claimant testified that she applied for fifty-two jobs after her

unemployment benefits ceased in June 1994 until the date of the

hearing. However, she remained unemployed from the time she was

discharged through the date of the hearing, except for the period

November 19 to December 18, 1994. Claimant was scheduled to

start work April 15, 1995, the day after the hearing. The deputy commissioner concluded that because claimant was

terminated solely because she lost a qualification for

employment, and not for wrongdoing, she had not unjustifiably

refused her selective employment. The deputy commissioner found

that the language in the employment application cited above

establishes that employer could have procured a position for

claimant which did not require a security clearance. Finding

that employer had not offered claimant such a position, the

deputy commissioner found that employer had withdrawn its offer

of selective employment. The deputy commissioner also found that

- 3 - claimant had made a reasonable effort to market her residual

capacity. Therefore, the deputy commissioner awarded claimant,

inter alia, (1) temporary total disability benefits from December

19, 1993 to November 18, 1994 and from December 19, 1994 to April

14, 1995; and (2) temporary partial disability benefits from

November 19 to December 18, 1994.

The full commission concluded that claimant's loss of her

security clearance amounted to an unjustified refusal of

selective employment. Except for the period from November 19 to

December 18, 1994, the commission found claimant's effort to

secure employment inadequate. Accordingly, the commission

reversed the temporary total benefits awards and affirmed the

temporary partial benefits award. Claimant appeals the

commission's reversal of temporary total disability benefits. We

affirm. II

The initial question we must decide is whether claimant's

discharge, based solely on the revocation of her security

clearance, amounts to an "unjustified refusal of selective

employment," as the commission concluded, or to a withdrawal of

selective employment, as the deputy commissioner concluded. "The

[c]ommission's construction of the Act is entitled to great

weight on appeal, . . . [but] the `conclusions of the

[c]ommission upon questions of law, or mixed questions of law and

fact, are not binding.'" City of Waynesboro v. Harter, 1 Va.

- 4 - App. 265, 269, 337 S.E.2d 901, 903 (1985) (citations omitted).

A disabled employee's discharge from selective employment

for reasons unrelated to her disability but for which she is

responsible is equivalent to an unjustified refusal of selective

employment. See Eppling v. Schultz Dining Programs, 18 Va. App.

125, 130, 442 S.E.2d 219, 222 (1994) (claimant discharged for

absenteeism caused by health problems unrelated to disability);

American Furniture Co. v. Doane, 230 Va. 39, 43, 334 S.E.2d 548,

550 (1985) (refusal of selective employment caused by unrelated

health problems); Marval Poultry Co., Inc. v. Johnson, 224 Va. 597, 599, 299 S.E.2d 343, 344 (1983) (claimant discharged for

dishonesty); Goodyear Tire & Rubber Co. v. Watson, 219 Va. 830,

833, 252 S.E.2d 310, 312-13 (1979) (claimant discharged for

unsatisfactory performance at selective employment); Potomac

Edison Co., Inc. v. Cash, 18 Va. App. 629, 631, 446 S.E.2d 155,

156 (1994) (claimant discharged for willful misconduct); cf.

Washington Metropolitan Transit Authority v. Harrison, 228 Va.

598, 600-01, 324 S.E.2d 654, 655-56 (1985) (where discharge from

selective employment due to economic conditions was, effectively,

a withdrawal of selective employment, entitling employee to a

resumption of compensation upon making a reasonable effort to

market his residual capacity); see generally A. Larson, The Law

of Workmen's Compensation § 57.64(a) (1995). The rationale for

this principle is that when an employee's work-related disability has resolved itself to the point that the worker can return to gainful employment, he

- 5 - or she is required to do so. An employer is not responsible for a disabled employee who is no longer unable to return to gainful employment because of his or her work-related injuries, but is prevented from doing so for other reasons.

Eppling, 18 Va. App. at 130, 442 S.E.2d at 222. The standard for

finding an unjustified refusal is not wrongdoing on the part of

the employee that leads to discharge. See id. (claimant

discharged for absenteeism caused by health problems unrelated to

disability); Doane, 230 Va. at 43, 334 S.E.2d at 550 (refusal of

selective employment due to unrelated health problems). Here, claimant was discharged from selective employment due

solely to her failure to maintain a security clearance, a reason

wholly unrelated to her disability and for which she alone was

responsible. We find that claimant's failure to maintain her

qualifications for the light duty work employer offered amounts

to an unjustified refusal of selective employment.

Claimant's argument that there can be no refusal of

selective employment without an offer of selective employment is

without merit. Employer clearly provided her selective

employment. Claimant cites no authority for her proposition

that, since other jobs were available at the shipyard that did

not require a security clearance, her discharge amounted to a

withdrawal of selective employment. Moreover, we find the

language in the employment agreement is not determinative. An

offer of selective employment was made, accepted, and later

"unjustifiably refused." Assuming, without deciding, employer

- 6 - had other positions available, it bore no duty to make a further

offer. See National Linen Service v. McGuinn, 8 Va. App. 267,

272 n.5, 380 S.E.2d 31, 34 n.5 (1989). 1

Accordingly, we conclude that the commission did not err in

construing claimant's discharge as an unjustified refusal of

selective employment.

III

Next, we must decide whether the commission erred in finding

claimant failed to cure her unjustified refusal of selective

employment. On appeal, the findings of fact made by the

commission will be upheld where supported by credible evidence. E.g., James v. Capitol Steel Const. Co., 8 Va. App. 512, 515, 382

S.E.2d 487, 488 (1989).

An employee can "cure" an unjustified refusal of selective

employment, and thereby become entitled to a resumption of

benefits, by procuring employment paying a wage comparable to the

wage the employee earned at the job unjustifiably refused. Burnette, 17 Va. App. at 79-80, 435 S.E.2d at 159-60; see also

Christiansen v. Metro Building Supply, Inc., 18 Va. App. 721, 1 We note that had employer not offered or procured selective employment, or had it withdrawn the offer it made, claimant would have been entitled to receive benefits upon showing she had made a reasonable effort to market her residual capacity. See Virginia Wayside Furniture, Inc. v. Burnette, 17 Va. App. 74, 79, 435 S.E.2d 156, 159 (1993); see Ellerson v. Grubb Steel Erection Co., 1 Va. App. 97, 102, 335 S.E.2d 379, 382 (1985); cf. Harrison, 228 Va. at 600-01, 324 S.E.2d at 655-56 (employee who lost selective employment due to economic condition of employer entitled to resumption of benefits after making reasonable effort to market residual capacity).

- 7 - 725, 447 S.E.2d 519, 521 (1994), rev'd on other grounds, 19 Va.

App. 513, 453 S.E.2d 302 (1995). An employee may also cure an

unjustified refusal of selective employment by making a good

faith effort to obtain suitable employment. Burnette, 17 Va.

App. at 79, 435 S.E.2d at 159. The rationale for such a rule is

apparent in the legislative intent of Code § 65.2-510: "to

encourage injured employees to seek selective employment rather

than to remain unemployed unless the employer finds such

employment for them." Id. (quoting Harrison, 228 Va. at 601, 324

S.E.2d at 656).

Claimant testified that, pursuant to directions from the

VEC, she applied for three positions per week for nineteen weeks.

However, she presented no evidence to show the dates of those

contacts, the potential employers she contacted, the points of

contact, the positions for which she applied, or whether the

positions were within her physical restrictions. Claimant

further testified that she applied for fifty-two positions after

her unemployment compensation ceased in June 1994 until the date

of the hearing. However, she presented no evidence to show the

dates of those contacts or whether the positions were within her

restrictions. Thus, we find that credible evidence supports the

commission's finding that claimant failed to cure her

unjustifiable refusal of selective employment by making a good

faith effort to obtain suitable employment during the periods

from December 19, 1993 to November 18, 1994 and from December 19,

- 8 - 1994 to April 14, 1995.

Accordingly, the decision of the commission is affirmed.

Affirmed.

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