                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Benton and Coleman
Argued at Salem, Virginia


THOMAS M. GERNI
                                          MEMORANDUM OPINION *
v.       Record No. 0146-95-3        BY JUDGE SAM W. COLEMAN III
                                           DECEMBER 12, 1995
VIRGINIA EMPLOYMENT COMMISSION, ET AL.


            FROM THE CIRCUIT COURT OF GRAYSON COUNTY
                     Willis A. Woods, Judge
          Terri E. LeGrand for appellant.

          James W. Osborne, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee Virginia Employment
          Commission.

          No brief or argument for appellee Minneapolis
          Postal Data Center.



     Thomas Gerni appeals from the trial court's order affirming

the Virginia Employment Commission's decision denying him

unemployment compensation benefits.   Gerni contends that the

commission erred in holding that he was discharged for misconduct

connected with his work.   Code § 60.2-618(2).   We hold that the

commission did not err and affirm the trial court's order.

     On appeal, "the findings of the commission as to the facts,

if supported by evidence and in the absence of fraud, shall be

conclusive, and the jurisdiction of the court shall be confined

to questions of law."   Code § 60.2-625(A); Israel v. Virginia
Employment Comm'n, 7 Va. App. 169, 172, 372 S.E.2d 207, 209
     *
       Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
(1988).   The claimant does not dispute the commission's finding

of facts, but contends that the facts are insufficient to support

a finding of misconduct.   "Whether an employee's behavior

constitutes misconduct . . . is a mixed question of law and fact

reviewable by this court on appeal."   Israel, 7 Va. App. at 172,

372 S.E.2d at 209.

     In Branch v. Virginia Employment Comm'n, 219 Va. 609, 249

S.E.2d 180 (1978), the Supreme Court established a two-prong test

defining misconduct connected with work under Code § 60.2-618(2).
          [A]n employee is guilty of "misconduct
          connected with his work" when he deliberately
          violates a company rule reasonably designed
          to protect the legitimate business interests
          of his employer, or when his acts or
          omissions are of such a nature or so
          recurrent as to manifest a willful disregard
          of those interests and the duties and
          obligations he owes his employer.


Id. at 611, 249 S.E.2d at 182.   The basis for the claimant's

discharge was that he failed to follow the restrictions his

treating physician set for him while claiming total disability

from a job-related injury, and he performed unsatisfactorily and

failed to follow instructions by misdelivering mail.   We hold

that either of these two reasons satisfies the prong of the
Branch test that defines misconduct as acts that are of such a

nature as to manifest a willful disregard of the employer's

legitimate business interests.

     The claimant contends that he did not exceed the doctor's

restrictions because the doctor did not specifically prohibit him



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from playing tennis.   Although the doctor made no specific

reference to bed rest, exercise, or activities to avoid, he

determined that the claimant suffered from a cervical

subluxation, a cervicobrachial syndrome, and muscle spasms, and

advised the claimant "to rest for two days at home."    Moreover,

the doctor signed a disability certificate certifying that the

claimant was totally incapacitated from working during the period

of May 19 through May 21.   In addition, the doctor informed the

employer that playing tennis would aggravate the claimant's

injury and impede the recovery process.   On this record, the

claimant could not have reasonably inferred that playing tennis

was a permissible activity during the time he was supposed to be

recovering from his injury.   Either his condition was such that

his absence from work was not justified, which required his

employer to pay him and the expense of his substitute, or if

justified, he failed to facilitate his recovery and his return to

work by ignoring the medical advice of his doctor.   Therefore,

the facts indicate that the claimant was guilty of misconduct

either by unjustifiably being absent from work or willfully

disregarding his employer's interests by playing tennis in

contravention of the doctor's instructions "to rest at home for

two days."
     The claimant's misdelivery of mail also proved a willful

disregard of the employer's interests.    Despite the fact that the

postmaster orally instructed the claimant to deliver a bundle of



                                -3-
mail to Route 2, Box 38 and provided him with a slip of paper

listing this address, the claimant delivered the mail to Route 1,

Box 289D.      The evidence supports the commission's finding that

the claimant misdelivered the mail because he intentionally

disobeyed the postmaster's instructions.      This was not the first

time the claimant had misdelivered the mail, and recurrent

violations establish deliberate and willful misconduct.          See

Borbas v. Virginia Employment Comm'n, 17 Va. App. 720, 723, 440

S.E.2d 630, 632 (1994); Israel, 7 Va. App. at 175, 372 S.E.2d at
211.       The claimant does not dispute that he intentionally

delivered the mail to the addressee's old address, even though

the postmaster had directed him to deliver the mail to the new

address where the addressee had moved.      The claimant contends

that he disobeyed the postmaster because he was adhering to his

employer's regulations.      Delivering the mail was the most

important aspect of the claimant's job.      By failing to deliver

the mail properly in accordance with the postmaster's

instructions and by knowing that he was misdelivering, the

claimant willfully disregarded the duties and obligations he owed

his employer.

       Because the claimant intentionally exceeded the physical

limitations the doctor imposed and misdelivered mail, we hold
                                                                   1
that he was discharged for conduct connected with his work.
       1
       In its findings of fact, the commission noted that the
claimant had been disciplined on six different occasions prior to
May 1993. "[A]bsent direct proof of willfulness, the


                                    -4-
 Accordingly, we affirm the trial court's order.

                                                        Affirmed.




[commission] must consider both the nature and frequency of the
acts from which willfulness is inferred." Whitt v. Ervin B.
Davis & Co., 20 Va. App. 432, 437, 457 S.E.2d 779, 781-82 (1995).
 We do not consider the frequency of the claimant's prior
misconduct, however, because under the facts of this case, we
conclude that the nature of the claimant's actions--playing
tennis while supposedly incapacitated and failing to deliver the
mail in accordance with the postmaster's instructions--is
"sufficient to support the inference of willfulness." Id., 457
S.E.2d at 782.



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