                    COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Annunziata and Overton
Argued at Alexandria, Virginia


STAFFORD COUNTY AND VIRGINIA MUNICIPAL
 GROUP SELF INSURANCE ASSOCIATION

v.         Record No. 0830-95-4         MEMORANDUM OPINION * BY
                                       JUDGE NELSON T. OVERTON
PEGGY LEE SMITH                            MARCH 12, 1996


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           Ralph L. Whitt, Jr. (Jennifer G. Marwitz;
           Sands, Anderson, Marks & Miller, on briefs),
           for appellants.

           Robert B. Adams (Ashcraft & Gerel, on brief),
           for appellee.


     Stafford County, employer, and Virginia Municipal Group Self

Insurance Association, insurer, appeal from the commission's

award of benefits to Peggy Smith, a former employee.   The

appellants contend that (1) Smith's psychological problems were

not causally related to her work-related injury, (2) Smith was

terminated for cause such that she is barred from future

compensation, and (3) Smith has not cured her unjustified refusal

of selective employment.   We find that credible evidence supports

the decision of the commission, and we affirm the award.

     Smith sustained a work-related injury to her neck while

employed as an emergency medical technician.   Two months later

she "had a break-down of sorts" at work which resulted in her

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
detention at a psychiatric hospital.     She was later fired from

her job for behavior leading up to the break-down.

     Smith filed a Change in Condition Application with the

commission, alleging that her psychological problems were caused

by her work-related physical injury.     The commission awarded

benefits based on the unequivocal, uncontradicted opinion of the

treating psychiatrist.   Her employer appeals.

     On appeal, we view the evidence in the light most favorable

to the prevailing party below.     R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).        "[I]t

is fundamental that a finding of fact made by the Commission is

conclusive and binding upon this court on review.    A question

raised by conflicting medical opinion is a question of fact."

Commonwealth v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533

(1986).   "The fact that contrary evidence may be found in the

record is of no consequence if credible evidence supports the

commission's finding."     Manassas Ice & Fuel Co. v. Farrar, 13 Va.

App. 227, 229, 409 S.E.2d 824, 825 (1991).

     The treating psychiatrist at the hospital expressed his

expert opinion in his Final Summary that Smith's problems were

related to her accident.    He reaffirmed this opinion in

subsequent letters sent to Stafford County Personnel Office.       He

further reiterated his position in his deposition.    The doctor's

opinion was cogent, well-reasoned, and uncontradicted by any

other medical opinion.   On this evidence the commission found



                                 - 2 -
that Smith's earlier injury caused her later problems.

      The employer also argues that Smith's behavior was so

willful as to bar her from future compensation.     In light of the

commission's factual finding that Smith was in a severe

depression brought on by her work-related injury, we do not

agree.   The treating physician's records demonstrate that Smith's

mood and attitude prior to her arrival at the psychiatric

hospital were symptoms of her depression.     The commission

concluded that Smith's actions were the product of these

resultant symptoms and therefore were not willful or intentional.

As credible evidence supports this finding, we do not disturb

it.
      We further disagree that Smith failed to cure her

unjustified refusal of selective employment.     The employer's sole

complaint on this issue is that Smith's new position pays

substantially less than her former position.     The employer does

not allege that Smith's new position is inappropriate to her

career, nor does the employer question the sincerity or quality

of Smith's efforts to find a position within her residual

capacity.   "Whether an employee has made a reasonable effort to

market his remaining work capacity is determined by an objective

standard of reasonableness and depends on the particular

circumstances of each situation."      Virginia Wayside Furn. v.

Burnette, 17 Va. App. 74, 79, 435 S.E.2d 156, 160 (1993);
National Linen Serv. v. McGuinn, 8 Va. App. 267, 270-72, 380




                               - 3 -
S.E.2d 31, 33-34 (1989).   Although Smith's new wage is less than

her former wage, the employer introduced no evidence that this

wage was abnormally low for a position in Smith's career field.

     The medical evidence before the commission supports the

finding of causation between Smith's work-related physical injury

and her later psychological problems. The record further supports

the commission's decision on both the termination and cure

issues.

                                              Affirmed.




                               - 4 -
ANNUNZIATA, R., dissenting.

        I dissent from the majority opinion with respect to the

issue of whether the claimant's termination for cause bars her

from an award of temporary partial benefits.

        While the evidence supports the majority's conclusion that

the commission did not err in determining that the claimant's

depression was related to and caused by her earlier work-related

physical injury to her neck, nothing in the record establishes

that the claimant's conduct which resulted in her termination was

caused by her depression.    Specifically, the record fails to show

that claimant's insubordinate, threatening, and abusive conduct

in response to her employer's questions about a suspected

violation of her probationary status was the result of her

depression.
        Five months before the claimant's termination, she was put

on probation for a six-month period for insubordination, creating

a hostile, abusive, and threatening work environment, creating

dissension among the employees, and invading another employee's

privacy by reading his mail.    Approximately one month later,

claimant suffered her job-related neck injury which she claimed,

and which the commission agreed, caused her subsequent

depression.    The claimant was terminated for behavior of the same

nature as that which resulted in her probation, including her

violation of another employee's privacy by reading the employee's

mail.    Given this evidence and the absence of any evidence




                                 - 5 -
whatsoever, medical or otherwise, to connect claimant's

depression to the misconduct leading to her termination, the

commission could only speculate that her behavior was caused by

her depression and therefore was not willful.       Accordingly, I

would reverse the commission's decision that claimant's discharge

constitutes an "unjustified refusal of light duty employment."

Cf. Eppling v. Schultz Dining Programs, 18 Va. App. 125, 129-30,

422 S.E.2d 219, 221-22 (1994).
     Moreover, in my opinion, even assuming (1) claimant's

discharge can be properly treated as an "unjustified refusal of

light duty employment"; and (2) claimant properly "cured" her

unjustified refusal, the commission's award of temporary partial

benefits based upon her current earnings should be reversed.

Under Code § 65.2-502, compensation for partial incapacity is

calculated according to the "difference between [the employee's]

average weekly wages before the injury and the average weekly

wages which he is able to earn thereafter."        In the case of an

employee who has cured an unjustified refusal, the wage earned at

the employment unjustifiably refused is clearly a wage that

employee is "able to earn."   Therefore, the award should not have

been based on her earnings at her current job but rather on the
                                               1
wage she earned at her selective employment.
     1
      I note that the commission's decision, on this point,
starkly contradicts its other recent decisions under similar
facts. See Ketron v. Reese Tile & Floor Covering, Inc., V.W.C.
File No. 158-67-80 (February 27, 1995); Waters v. Colonial Block
of Norfolk, Inc., V.W.C. File No. 128-00-86 (December 30, 1994).




                                 - 6 -
          To hold otherwise would allow an employee at
          any time to abandon selective employment
          being tendered by the employer for a position
          of his own choosing which would require the
          employer to be responsible for increased
          partial compensation which it would not have
          to pay had the employe[e] accepted the work
          available to him from the employer. . . . [In
          such a case] the employee's loss of earnings
          is not . . . due to his injury but is due to
          his unjustifiably abandoning the selective
          employment.


Lawhorne v. H.F. Interiors, Inc., 68 O.I.C. 176, 178 (1989); see

also Burnette, 17 Va. App. at 79, 435 S.E.2d at 160. 2
     Accordingly, I would reverse.




     2
      I note that Code § 65.2-510(B), as amended in 1995, would
direct the same result reached in this dissent.




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