                        COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Agee and Senior Judge Hodges
Argued at Chesapeake, Virginia


TRANSPORTATION SAFETY CONTRACTING
 AND ST. PAUL FIRE & MARINE
 INSURANCE COMPANY
                                           MEMORANDUM OPINION * BY
v.   Record No. 1713-00-1                JUDGE JAMES W. BENTON, JR.
                                                MAY 22, 2001
ROBERT A. MARTIN, SR.


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          R. Ferrell Newman (Thompson, Smithers,
          Newman, Wade & Childress, on brief), for
          appellants.

          John H. Klein (Montagna, Klein & Camden,
          L.L.P., on brief), for appellee.


     Transportation Safety Contracting contends that the Workers'

Compensation Commission erred (1) in reinstating the disability

benefits of Robert A. Martin, Sr., after Transportation Safety

terminated his selective employment and (2) by declining to

apply Code § 65.2-510(B) to bar Martin's compensation benefits

based upon his wages at his new employment.    We affirm the

commission's award.

                                 I.

     Viewed in the light most favorable to Martin, who prevailed

before the commission, see Allen & Rocks, Inc. v. Briggs, 28 Va.

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
App. 662, 672, 508 S.E.2d 335, 340 (1998), the evidence proved

that Martin injured his head and back while employed as an

electrical foreman for Transportation Safety.   Prior to his

injury by accident, Martin was a commendable employee.    The

record establishes that Martin had received substantial

financial bonuses and was knowledgeable about Transportation

Safety's business.   Based on a memorandum of agreement, the

commission entered an award granting Martin temporary total

disability benefits.

     Martin testified that while he was healing from his injury

he had to visit Transportation Safety on several occasions

because "they were not paying the [medical] bills on time and

[he] was receiving notice that [his] credit was going to be

damaged."   Martin also testified that during these visits

several employees informed him that the division manager said he

"had been drinking and drugging" the day of his injury.   The

evidence proved, however, that another employee's negligence

caused Martin's injury.   Martin testified that Transportation

Safety had not given its employees safety manuals and that the

failure to have them created unsafe conditions.

     When Martin was released to return to work in light duty,

Transportation Safety offered him an office position, where he

was able to use his computer skills.   Martin testified that he

used his personal funds and Transportation Safety's computers to

establish an internet presence to facilitate Transportation

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Safety's business efficiency.   Martin also testified that after

he began his selective employment several employees again told

him that the division manager had suggested that Martin had

sustained his injury because he had been under the influence of

drugs or alcohol.   When Martin went to the division manager to

complain about those statements, the division manager blamed

other employees for spreading rumors.   During that discussion,

Martin also talked with the division manager about the lack of

safety manuals on the day of his accident.   Martin testified

that he did so because after he returned to work he learned from

the office manager that "she had to call the home office . . .

and request a copy" of the safety manual.

     The office manager testified that after Martin returned to

work in his light duty employment he began "badmouthing the

employees," including the employee whose negligence led to

Martin's injury.    She heard Martin say that the employees were

incompetent and that "he'd trusted a fellow employee and he

would never do that again."   She reported Martin's complaints to

the division manager.   That same day, the division manager met

with Martin in her presence to discuss "what the problem was;

why was [Martin] unhappy; why was he saying all these things."

During that meeting, the division manager acknowledged that he

had made inquiries of the employees about whether Martin had

used drugs.   The office manager said Martin "took offense to



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that."   She testified that when the division manager asked what

he could do to remedy the situation, Martin said, "fire me."

       The division manager testified that when Martin returned

from his injury, Martin complained about the lack of safety

manuals.   The division manager testified, however, that a safety

manual was in the office file and on the table but said Martin

"may not have been aware of it."   The division manager also

testified that he met with Martin and the office manager after

she reported that Martin was unhappy.   During that meeting, the

division manager denied that he had accused Martin of drug use.

He admitted, however, that he had investigated such a rumor and

that the investigation had ended when he "found out that no one

knew anything about it."   The division manager testified that

Martin became angry about these allegations.   When he asked

Martin what he could do to remedy the situation, Martin said,

"fire me."   The division manager ended the meeting but later met

with Martin and terminated his employment.   The division manager

testified that he believed this was a "mutually acceptable

parting of the ways."

       Martin testified that during the meeting, he told the

division manager he believed the rumors of drug use slandered

him.   He said he objected to the manner in which the inquiries

were made.   Martin testified that the division manager became

"very defensive about that and several times . . . [said] not

only that he did not have to let [Martin] come back to work, but

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that he could always fire [Martin]."   Martin testified that

"after growing weary of [the discussion, he] said, go ahead if

that's what you feel necessary to do."    The division manager

left the meeting and later terminated him, saying Martin "just

could not give 100 percent anymore."

                               II.

     In pertinent part, 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 [Code] §§ 65.2-503 and 65.2-603 . . . during the

continuance of such refusal, unless in the opinion of the

Commission such refusal was justified."   Applying the

predecessor statute, we held in Chesapeake & Potomac Telephone

Co. v. Murphy, 12 Va. App. 633, 406 S.E.2d 190, aff'd on reh'g,

13 Va. App. 304, 411 S.E.2d 444 (1991), that an employee who is

terminated for justifiable cause from selective employment that

is procured by the employer forfeits the right to cure this

termination by obtaining other employment.   12 Va. App. at

639-40, 406 S.E.2d at 193.   Later, we further explained the rule

as follows:

             When a disabled employee is discharged
          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


                               - 5 -
          . . . benefits when discharged for a
          "justified" reason.

             A "justified" discharge (one which
          warrants forever barring reinstatement of
          workers' compensation benefits) does not
          simply mean that the employer can identify
          or assign a reason attributable to the
          employee as the cause for his or her being
          discharged. Whether the reason 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 a permanent
          forfeiture of those rights and benefits.

Eppling v. Schultz Dining Programs, 18 Va. App. 125, 128, 442

S.E.2d 219, 221 (1994) (citations omitted).

     Applying the well established standard of review, we are

required to uphold the commission's factual findings when they

are supported by credible evidence.    Code § 65.2-706; James v.

Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487,

488 (1989).   Furthermore, any reasonable inferences the

commission draws from credible evidence "will not be disturbed

by this Court on appeal."   Hawks v. Henrico County Sch. Bd., 7

Va. App. 398, 404, 374 S.E.2d 695, 698 (1988).   The commission

accepted Martin's testimony and found as follows:

          The claimant's negative attitude that
          developed after his return to work was, in
          part, related to the work injury. His
          initial job enthusiasm upon returning to
          selective work evolved into a poor attitude
          after the claimant learned of his
          supervisor's comments that drugs or alcohol
          had contributed to the work injury and that
          the company had failed to order safety
          manuals after the accident. The claimant's

                               - 6 -
            termination for having a poor attitude did
            not rise to the level of justified cause.

               Further, we find that the claimant did
            not unjustifiably refuse selective
            employment on May 12, 1999. It appears that
            the employer withdrew its offer of selective
            employment upon a determination that the
            claimant's attitude was incompatible with
            the business rules. The record does not
            establish that the claimant attempted to
            sabotage selective employment procured by
            the pre-injury employer through
            communicating his poor attitude. We note
            again no evidence of deterioration in the
            claimant's work performance during this
            period.

       Martin's testimony, which the commission found to be

credible, supports these findings.      He testified that his

dissatisfaction arose from several events related to his job

related injury.   Initially, he expressed his concern about

Transportation Safety's delay in paying his medical expenses,

which he believed threatened his credit standing.     Martin also

voiced his concern about the division manager's inquiry

concerning allegations of Martin's possible drug and alcohol

use.   The inquiry showed the allegation had no basis, but the

investigation caused Martin distress because his toxicology

reports established no drugs or alcohol in his system and the

accident was established to have been caused by the negligence

of another employee.

       In addition, Martin testified that no safety manuals had

been given to employees prior to his injury and that the absence

of manuals contributed to his injury.     Although the division

                                - 7 -
manager testified that there was a manual in his file and on a

desk outside his office, he acknowledged that Martin, who was a

foreman, may not have been made aware of those manuals.    Martin

testified, however, that the office manager told him that she

had only requested safety manuals after his injury.   He further

testified that "still, to this day; [he has] . . . never seen a

[safety] manual with Transportation Safety."

     In Richmond Cold Storage Co. v. Burton, 1 Va. App. 106, 335

S.E.2d 847 (1985), we upheld the commission's ruling that an

employer's discharge of an employee "for misconduct does not

bind the Commission in its inquiry whether [the employee] is

precluded from claiming benefits due to a justified dismissal."

Id. at 109, 335 S.E.2d at 849.    Later, in Eppling, we ruled that

not every discharge, even if supported by a reason, is a

"justified" discharge.    18 Va. App. at 128, 442 S.E.2d at 221.

The commission is required "to consider the nature of [the]

conduct," which is alleged to constitute the cause or to justify

the dismissal.   Id. at 129, 442 S.E.2d at 221.   Thus, we held

that even if the employer can assign a reason for discharge, not

every "type of willful conduct or misbehavior [arises to the

level] that, upon termination, justifies a forfeiture of

workers' compensation benefits [under Murphy]."    18 Va. App. at

130, 442 S.E.2d at 222.

     Although the office manager testified in this case that

Martin made derogatory comments to her and was heard to have

                                 - 8 -
made such comments to other employees concerning the staff and

the safety policies, the record indicates that neither the

office manager nor the division manager put any written warnings

or adverse comments in Martin's personnel file.   The record also

indicates that Martin's comments primarily concerned the

employees involved in the incident of his injury.

     Credible evidence also supports the commission's finding

that Martin's "negative attitude [arose] after [he] learned of

[the division manager's] comments that drugs or alcohol had

contributed to the work injury and that [Transportation Safety]

had failed to order safety manuals."   Further, the record

contains credible evidence to support the commission's finding

that these issues are related to Martin's perceptions that his

accident was avoidable and that he was the subject of an

unjustifiable investigation into his character following an

accident that was caused by another employee's negligence.

     Furthermore, Martin's behavior does not resemble the

behavior of the employees in Marval Poultry Co. v. Johnson, 224

Va. 597, 299 S.E.2d 343 (1983), or Goodyear Tire & Rubber Co. v.

Watson, 219 Va. 830, 252 S.E.2d 310 (1979).   We used those cases

in Eppling to illustrate what constitutes justification for

terminating an employee on selective work status.   In Marval

Poultry, the Supreme Court determined that an employer was

justified in dismissing an employee for his dishonesty.    224 Va.

at 601, 299 S.E.2d at 346.   In Goodyear, the Court held that an

                               - 9 -
employer was justified in dismissing an employee for poor work

and excessive absenteeism.   219 Va. at 833, 252 S.E.2d at 313.

In this case, the evidence demonstrated that Martin was a

productive employee with no problems with truthfulness or

misconduct.

     As the commission properly ruled, Code § 65.2-510(B) is

only applicable in cases where the employee unjustifiably

refuses selective employment.    The division manager's

termination of Martin was a withdrawal of its selective

employment upon his belief that Martin's attitude was not

compatible with continued employment.    We hold that the evidence

supports the commission's ruling that this reason does not

disqualify Martin for a continuation of benefits.     Because we

affirm the commission's ruling that Martin did not unjustifiably

refuse employment, Transportation Safety's second issue is moot.

     For these reasons, we affirm the commission's award.

                                          Affirmed.




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