                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Richmond, Virginia


SKIP'S AUTO PARTS/ADP TOTALSOURCE AND
 ROYAL INSURANCE COMPANY OF AMERICA
                                            MEMORANDUM OPINION * BY
v.   Record No. 0984-02-2                 JUDGE ROBERT J. HUMPHREYS
                                               DECEMBER 31, 2002
DOUGLAS HARRISON CLINE


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          S. Vernon Priddy III (Sands, Anderson,
          Marks & Miller, on brief), for appellants.

          Wesley G. Marshall for appellee.


     Skip's Auto Parts/ADP TotalSource and Royal Insurance Company

of America ("employer"), appeal from a decision of the workers'

compensation commission awarding Douglas H. Cline temporary total

disability benefits, beginning September 1, 2001 and continuing.

For the reasons that follow, we affirm the decision of the

commission.

                            I.   Background

     "In accordance with well established principles, we consider

the evidence in the light most favorable to the prevailing party




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
below."   Hillcrest Manor Nursing Home v. Underwood, 35 Va. App.

31, 34, 542 S.E.2d 785, 787 (2001).     So viewed, the evidence here

established that Cline injured his back while working as a parts

deliveryman for employer.   On August 31, 2001, after employer

discovered Cline was taking Percocet, prescribed for the pain

resulting from his injury, employer terminated Cline's selective

duty employment, which required Cline to drive.

     On appeal, employer contends that "[g]iven the [deputy

commissioner's] unappealed credibility finding on Cline's daytime

use of Percocet," the evidence established employer terminated him

for cause.   Thus, employer argues the commission erred in finding

Cline adequately marketed his residual work capacity, because he

was required to "cure, rather than simply market his residual

capacity."   Employer further contends that, in the alternative,

Cline's evidence failed to establish that he adequately marketed

his residual capacity.   We disagree.

     We first note that "[f]actual findings by the commission that

are supported by credible evidence are conclusive and binding upon

this Court on appeal."   Southern Iron Works, Inc. v. Wallace, 16

Va. App. 131, 134, 428 S.E.2d 32, 34 (1993).    Indeed, "[i]f there

is evidence, or reasonable inferences can be drawn from the

evidence, to support the Commission's findings, they will not be

disturbed on review, even though there is evidence in the record

to support a contrary finding."   Morris v. Badger Powhatan/Figgie

Int'l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986).

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However, whether a claimant may be disqualified from benefits for

work-related misconduct "is a mixed question of law and fact

reviewable by this court on appeal."   Israel v. Virginia

Employment Comm'n, 7 Va. App. 169, 172, 372 S.E.2d 207, 209

(1988).

     Code § 65.2-510(a) provides that "[i]f an injured employee

refuses employment procured for him suitable to his capacity, he

shall only be entitled to the benefits provided for in §§ 65.2-503

and 65.2-603 . . . during the continuance of such refusal, unless

in the opinion of the [c]ommission such refusal was justified."

"This statute does not require that employers make selective

employment available.   But the relief thereby afforded an employer

when an employee unjustifiably refuses to accept or continue

selective employment is limited to those cases in which the

employer has provided or procured such employment."   Big D Quality

Homebuilders v. Hamilton, 228 Va. 378, 381-82, 322 S.E.2d 839, 841

(1984) (citation omitted).

          In Ellerson v. W. O. Grubbs Steel Erection
          Co., 1 Va. App. 97, 98, 335 S.E.2d 379, 380
          (1985), we held that "in order to support a
          finding [of refusal] based upon Code
          [§ 65.2-510], the record must disclose (1) a
          bona fide job offer suitable to the
          employee's capacity; (2) procured for the
          employee by the employer; and (3) an
          unjustified refusal by the employee to
          accept the job."

Johnson v. City of Clifton Forge, 9 Va. App. 376, 377, 388

S.E.2d 654, 655 (1990) (en banc).


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     Employer first argues that because of the statements Cline

made to personnel and because of the "actions he took at work,"

employer was "convinced" Cline was taking Percocet "during the day

while driving his truck.     Concerned about potential liability,"

employer "placed Cline in an inactive status."    Thus, employer

contends it "terminated Cline's light duty job for cause as a

matter of law."

     We have held that

          [a]n 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. However,
          an employee on selective employment offered
          or procured by the employer, who is
          discharged for cause and for reasons not
          concerning the disability, forfeits his or
          her right to compensation benefits like any
          other employee who loses employment benefits
          when discharged for cause.

Timbrook v. O'Sullivan Corp., 17 Va. App. 594, 597, 439 S.E.2d

873, 875 (1994) (citations omitted).     "The reason for the rule is

that the wage loss is attributable to the employee's wrongful act

rather than the disability."     Id.

     Indeed, an employee's "wrongful act" is the linchpin for a

"justified" discharge - one which warrants forever barring

reinstatement of workers' compensation benefits.    See Eppling v.

Schultz Dining Programs, 18 Va. App. 125, 128-29, 442 S.E.2d 218,

221-22 (1994).    However,

          "[a] justified discharge . . . does not
          simply mean that the employer can identify

                                 - 4 -
          or assign a reason attributable to the
          employee as the cause for his or her being
          discharged. Whether the reasons for the
          discharge is for" cause, "or is" justified
          for purposes of forfeiting benefits must be
          determined in the context of the purpose of
          the Act and whether the conduct is of such a
          nature that it warrants permanent forfeiture
          of those rights and benefits. "[T]he
          [c]ommission . . . must be mindful of the
          purposes and goals of the" Act.

Walter Reed Convalescent Center v. Reese, 24 Va. App. 328, 336,

482 S.E.2d 92, 97-98 (1997) (quoting Eppling, 18 Va. App. at

128, 442 S.E.2d at 221).

     In the case at bar, the commission found that Cline's

consumption of the medication was a direct result of the

compensable injury that he suffered.   In fact, the evidence

established that the medication was consistently prescribed to

Cline by his treating physician, to take on an as needed basis.

Thus, as the commission noted, if we accept employer's claim that

it "terminated [Cline's] light duty job" because of his

consumption of the medication, the record demonstrates that Cline

did nothing to justify termination of his selective employment.

Accordingly, the commission did not err in determining that Cline

was entitled to the appropriate benefits after September 1, 2001,

and was not required to "cure" any "unjustified" refusal of

selective employment.   See Big D Quality Homebuilders, 228 Va. at

381-82, 322 S.E.2d at 841.

     Employer next contends that the commission erred in finding

Cline's evidence sufficient to establish that he adequately

                               - 5 -
marketed his residual work capacity after his separation from

employment in September.   We again disagree.

     "In order to continue to receive benefits under the Workers'

Compensation Act, a claimant who has been injured in a job-related

accident must market his remaining capacity to work."    Herbert

Bros., Inc. v. Jenkins, 14 Va. App. 715, 717, 419 S.E.2d 283, 284

(1992).   We have held that "[w]hat constitutes a reasonable

marketing effort depends upon the facts and circumstances of each

case."    Greif Companies (GENESCO) v. Sipe, 16 Va. App. 709, 715,

434 S.E.2d 314, 318 (1993).

            [I]n deciding whether a partially disabled
            employee has made [a] reasonable effort to
            find suitable employment commensurate with
            his abilities, the commission should
            consider such factors as: (1) the nature and
            extent of employee's disability; (2) the
            employee's training, age, experience, and
            education; (3) the nature and extent of
            employee's job search; (4) the employee's
            intent in conducting his job search; (5) the
            availability of jobs in the area suitable
            for the employee, considering his
            disability; and (6) any other matter
            affecting employee's capacity to find
            suitable employment.

National Linen Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d

31, 34 (1989) (footnotes omitted).      "The commission . . .

determines which of these or other factors are more or less

significant with regard to the particular case."      Id. at 272-73,

380 S.E.2d at 34-35; see also Lynchburg General Hospital v.

Spinazzolo, 22 Va. App. 160, 168, 468 S.E.2d 146, 150 (1996).



                                - 6 -
     Thus, in examining Cline's "intent in conducting his job

search," the commission had to determine "whether it was evident

from the employee's conduct that he was acting in good faith in

seeking suitable employment."    National Linen Serv., 8 Va. App. at

272 n.3, 380 S.E.2d at 34 n.3.    On these facts, we find the

commission reasonably determined that Cline's job search was made

in good faith.   Cline established that he registered with the VEC

and that he personally contacted approximately 22 employers,

inquiring whether they had employment available.   The fact that

the employers had not advertised positions does not diminish

Cline's efforts in this regard.    Furthermore, as the commission

noted, the fact that several of the positions Cline sought were

driving positions is of no consequence.   Indeed, the evidence

established that Cline's treating physician never restricted his

ability to drive.

     For the above-stated reasons, we affirm the decision of the

commission.

                                                           Affirmed.




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