                  COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Annunziata and Frank
Argued at Alexandria, Virginia


WILLIAM HAZEL COMPANIES AND
 ROYAL INSURANCE COMPANY OF AMERICA
                                        MEMORANDUM OPINION * BY
v.   Record No. 2477-99-2             JUDGE ROSEMARIE ANNUNZIATA
                                            MAY 23, 2000
JESSE ROBERT CRESWELL


       FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Benjamin J. Trichilo (Trichilo, Bancroft,
          McGavin, Horvath & Judkins, P.C., on
          briefs), for appellants.

          Wesley G. Marshall for appellee.


     William Hazel Companies ("Hazel") and Hazel's insurer,

Royal Insurance Company of America, appeal from the decision of

the Workers' Compensation Commission affirming the deputy

commissioner's decision awarding Creswell temporary total

disability benefits, and reversing the deputy commissioner's

finding that Creswell's pre-existing arthritis was not

aggravated by his compensable injury and that Creswell remained

disabled after September 21, 1997.    For the reasons that follow,

we affirm the commission's decision.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                              BACKGROUND

        "Guided by well established principles, we construe the

evidence in the light most favorable to the party prevailing

below, [the] claimant in this instance."       Russell Stover Candies

v. Alexander, 30 Va. App. 812, 825, 520 S.E.2d 404, 411 (1999)

(citing Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App.

503, 504, 339 S.E.2d 916, 916 (1986)).      Creswell sustained an

ankle sprain while working for Hazel on August 27, 1997.

Creswell did not report his injury to Hazel until August 29,

1997.    On that date, before Creswell reported his injury, Hazel

terminated Creswell's employment for his failure to report to

work on the previous day, citing a history of absenteeism by

Creswell.    Creswell subsequently sought continuing compensation

wage and medical benefits.    The deputy commissioner awarded

Creswell medical benefits and temporary total disability

benefits for the period from August 28, 1997 through September

21, 1997.    The deputy commissioner found that Creswell's

termination was not "for cause," and therefore did not

constitute a bar to receiving an award of wage benefits.      Upon

review, in an opinion dated September 22, 1999, the full

commission agreed with the deputy commissioner that Creswell's

termination was not for cause and that he was therefore not

barred from receiving wage benefits.       The commission reversed

the deputy commissioner's finding that Creswell's pre-existing


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arthritis was not aggravated by his on-the-job injury, however,

and concluded that Creswell remained disabled after September

21, 1997.    The commission also found that Creswell had

adequately marketed his remaining work capacity after November

15, 1997, and awarded benefits from that date and continuing.

This appeal followed.

     Appellants allege 1) that the commission erred in finding

that Creswell was not terminated for cause and that Creswell's

termination did not bar him from receiving wage benefits;

2) that the record fails to support the commission's finding

that an award of continuing disability was warranted; and

3) that Creswell adequately marketed his work capacity for the

period after April 14, 1998.   We find no merit in these

arguments.

             WHETHER TERMINATION FOR CAUSE BARS CRESWELL
                     FROM RECEIVING WAGE BENEFITS

     Appellants contend that Creswell was terminated for his

failure to notify Hazel of the reason for his absence on August

28, 1997, as required by the policy stated in Hazel's employee

handbook, and because of Creswell’s history of repeated

absenteeism.   Appellants rely upon C & P Telephone v. Murphy, 12

Va. App. 633, 406 S.E.2d 190 (1991), aff’d en banc, 13 Va. App.

304, 411 S.E.2d 444 (1991), to argue that Creswell's termination

for absenteeism precludes him from receiving wage benefits, even

though he sustained a compensable injury.    Murphy clearly

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establishes that employees are responsible for wage loss

properly attributable to their wrongful conduct.    See 12

Va. App. at 639-40, 406 S.E.2d at 193.   However, as explicated

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

(1994), Murphy represents a narrow rule; where an employee's

wage loss is not attributable to his wrongful conduct, the fact

that the employee was discharged for such conduct is not in

itself sufficient to preclude him from receiving benefits.      See

18 Va. App. at 633, 446 S.E.2d at 157.

     In Murphy, we held that where a disabled employee is

terminated for cause from selective employment offered or

provided by his employer, any subsequent wage loss is properly

attributable to the employee's wrongful conduct rather than his

disability, and he is therefore barred from subsequently seeking

wage indemnity benefits.    See 12 Va. App. at 639-40, 406 S.E.2d

at 193.    We revisited Murphy in Cash, in which we held that

Murphy did "not bar [a] claimant's application for benefits

after termination for cause when [the] claimant subsequently

suffer[ed] total disability caused by the prior work-related

injury."   18 Va. App. at 632, 446 S.E.2d at 157.

     Applying this principle to the facts before us, we find

that Creswell's wage loss resulted from his compensable injury,




                                - 4 -
and not from his history of absenteeism. 1   According to the

rationale underlying Murphy, as elucidated in Cash, Creswell is

entitled to benefits.   The record establishes that he suffered

an injury on August 27, 1997, and remained at home because of

the injury on August 28, 1997.    On August 29, 1997, Creswell

reported to work, at which time he was told of his termination.

Although his supervisor, Francis Jenkins, testified that he

terminated Creswell because of repeated unexcused absences from

work, culminating in the August 28, 1997 absence, it is

uncontroverted that Creswell sustained his compensable injury

while employed by Hazel and prior to this absence and that the

absence was due to the injury.    "[T]he factual findings of the


     1
       Appellants proffer in their Reply Brief a portion of a
deposition of Creswell purportedly conducted on December 17,
1997, styled "Appendix B." Creswell moved to exclude
consideration of this "Appendix B" because appellants failed to
include it in the Appendix. As provided in Rule 5A:25(h), "[i]t
will be assumed that the appendix contains everything germane to
the questions presented. The Court of Appeals may, however,
consider other parts of the record." (Emphasis added). See
Gabbard v. Knight, 202 Va. 40, 48, 116 S.E.2d 73, 78 (1960)
(Rule governing contents of appendix is intended to provide, in
convenient, printed form, "all that is germane to the errors
assigned," and obviates necessity of Court to refer to the full
record (citing Jenkins v. Womack, 201 Va. 68, 69, 109 S.E.2d 97,
98 (1959))). See also Twardy v. Twardy, 14 Va. App. 651, 654,
419 S.E.2d 848, 850 (1992) (en banc) ("[A]n appellant has the
primary responsibility of ensuring that a complete record is
furnished to an appellate court so that the errors assigned may
be decided properly."). Thus, by Rule, we are not required to
look beyond the appendix for a record of the deposition cited in
appellants' Reply Brief. However, having examined the complete
record in the case nonetheless, we do not find the deposition in
question, and consequently do not consider it in our decision.


                                 - 5 -
commission are binding if they are supported by credible

evidence."     Wagner Enterprises, Inc. v. Brooks, 12 Va. App. 890,

894, 407 S.E.2d 32, 35 (1991) (citation omitted).    "The fact

that there is contrary evidence in the record is of no

consequence if there is credible evidence to support the

commission's finding."     Id. (citing Franklin Mortgage Corp. v.

Walker, 6 Va. App. 108, 110-11, 367 S.E.2d 191, 193 (1988) (en

banc)).     According to the underlying premise of the case law, as

interpreted in Cash, employees will be held "responsible only

for any wage loss properly attributable to their wrongful

conduct."    18 Va. App. at 633, 446 S.E.2d at 157 (emphasis

added).   The commission determined from the evidence before it

that Creswell's wage loss resulted from his compensable injury,

not from his absenteeism.    Because the evidence on the record

before us supports this conclusion, we will not disturb the

commission's decision.

                      SUFFICIENCY OF THE EVIDENCE

     As noted, the commission's findings of fact must be upheld

when supported by credible evidence, see Wagner Enterprises, 12

Va. App. at 894, 407 S.E.2d at 35, and we view the evidence in

the light most favorable to the party prevailing below.     See

Russell Stover Candies, 30 Va. App. at 825, 520 S.E.2d at 411.

     The commission reviewed medical opinion evidence from four

physicians who examined or treated Creswell.    The commission


                                 - 6 -
concluded, based upon the medical opinions offered by these

physicians, that Creswell's compensable injury was causally

related to his continuing disability and that Creswell's injury

aggravated a pre-existing arthritic condition.     The commission

also concluded, as a question of fact, that Creswell had

reasonably marketed his remaining capacity to work after

November 15, 1997.    Appellants contend that the evidence does

not support these conclusions.    However, the commission

carefully reviewed and weighed the medical evidence offered.

        Furthermore, although the commission did not outline its

reasoning in determining that Creswell had reasonably marketed

his remaining capacity to work, the evidence establishes that

from November 15, 1997 to the date of the hearing, Creswell

actively pursued employment for which his experience and his

ninth-grade education suited him, viz. construction and

equipment-operating jobs.    He testified to his job hunting

efforts, and he provided travel records documenting his efforts

to find work.    The commission therefore had before it credible

evidence to support its conclusion.      We perceive no plain error,

and therefore will not disturb the commission's findings of

fact.    The decision of the commission is affirmed.

                                                            Affirmed.




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