Bryon Lee West v. Best Products Co. ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Overton
Argued at Richmond, Virginia
BRYON LEE WEST
MEMORANDUM OPINION * BY
v. Record No. 1556-96-2 JUDGE ROSEMARIE ANNUNZIATA
JANUARY 28, 1997
BEST PRODUCTS COMPANY, INC.
AND HARTFORD UNDERWRITERS
INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
B. Mayes Marks, Jr. (B. Mayes Marks, Jr.,
P.C., on brief), for appellant.
P. Dawn Bishop (Sands, Anderson, Marks &
Miller, P.C., on brief), for appellees.
Claimant, Bryon Lee West, worked as a warehouseman for
employer, Best Products Company, Inc., for twenty years; in
February 1993 he suffered a compensable injury. Claimant
initially received temporary total disability benefits, which
were reduced to temporary partial benefits upon his return to
selective employment provided by employer in March 1993. In May
1993, the temporary partial benefits were suspended when claimant
resumed earning his pre-injury wage. Employer discharged
claimant on December 31, 1994, and claimant thereafter applied
for a resumption of benefits. The commission denied his claim,
finding claimant had been discharged for "justified cause."
Finding no error, we affirm.
When a disabled employee is discharged
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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 her
employment benefits when discharged for a
"justified" reason.
Eppling v. Schultz Dining Programs, 18 Va. App. 125, 128, 442
S.E.2d 219, 221 (1994) (quoting Richmond Cold Storage Co. v.
Burton, 1 Va. App. 106, 111, 335 S.E.2d 847, 850 (1985)). "The
reason for the rule is that the wage loss is attributable to the
employee's wrongful act rather than the disability." Timbrook v.
O'Sullivan Corp., 17 Va. App. 594, 597, 439 S.E.2d 873, 875
(1994).
An employee's "wrongful act" is the linchpin for a
"justified" discharge--one which warrants forever barring
reinstatement of workers' compensation benefits. See Eppling, 18
Va. App. at 128-29, 442 S.E.2d at 221-22. Simply identifying or
assigning "a reason attributable to the employee as the cause for
his or her being discharged" is not sufficient to establish a
forfeiture of benefits. Id.
In the present case, the commission found that claimant's
excessive tardiness provided employer "justified cause" to
discharge him. That finding involves a mixed question of law and
fact reviewable on appeal. E.g., Helmick v. Economic Development
Corp., 14 Va. App. 853, 855, 421 S.E.2d 23, 24 (1992). However,
we are bound by the commission's underlying findings of fact if
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credible evidence supports them.
The commission found that claimant was terminated for cause
because of excessive tardiness, noting that he had "compiled an
unacceptable record of tardiness" from May 1993 through December
1994. Documentary evidence as well as the testimony of
claimant's supervisor showed that claimant had been admonished
for tardiness in October 1993, March 1994, April 1994, August
1994 and as early as 1984. The supervisor described claimant's
tardiness as "chronic" and "habitually [occurring] throughout his
tenure." The evidence shows that claimant's tardiness followed a
pattern. After being admonished, claimant would at first report
on time. Gradually, however, claimant's tardiness would resume
until it reached nearly four of five days a week, at which point
he would again be admonished. Each time he was admonished,
claimant was told that his tardiness would lead to a three-day
suspension and eventual termination. Claimant was suspended
because of his tardiness for one day in March 1994. With each
subsequent admonishment, claimant was notified that continued
tardiness would result in a three-day suspension. Claimant
agreed that he had a "heck of a lot of problems [with tardiness]
prior to [August 1994.]" Claimant's supervisor and another
representative of employer both testified that claimant was
terminated due to his excessive tardiness. Claimant did not
receive a three-day suspension.
Claimant argues that the case must turn on the evidence of
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his tardiness subsequent to August 1994, during which period he
testified that he had no further tardiness problems. Claimant
further described a performance evaluation conducted in September
1994 which did not address tardiness and which relayed that he
was doing a "real, real, good job."
Notwithstanding the absence of evidence documenting
claimant's tardiness subsequent to August 1994, credible evidence
supports the commission's finding that claimant was discharged
for cause. The evidence established patterns of tardiness over a
prolonged period and repeated admonishment by employer that
continued tardiness would result in termination. Furthermore,
the commission was entitled to credit the testimony of employer's
representatives that claimant had been discharged as a result of
his tardiness.
Other evidence, namely claimant's testimony that his
tardiness had ceased subsequent to August 1994 and the fact that
employer did not suspend claimant for three days as it had
warned, arguably supports the proposition that employer fired
claimant for reasons unrelated to his tardiness. However, that
contrary evidence may appear in the record "is of no consequence
if there is credible evidence to support the commission's
finding." Wagner Enterprises, Inc. V. Brooks, 12 Va. App. 890,
894, 407 S.E.2d 32, 35 (1991). 1
1
In his brief, claimant argues that employer condoned his
tardiness by not discharging him for four months following the
last evidence of his tardiness. See Robinson v. Hurst Harvey
Oil, Inc., 12 Va. App. 936, 407 S.E.2d 352 (1991). However, this
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The commission further found claimant's discharge for cause
was "justified." The commission found no evidence that
claimant's tardiness resulted from events or circumstances beyond
his control. Cf. Eppling, 18 Va. App. at 129-30, 442 S.E.2d at
222. Claimant testified that his tardiness resulted from his
taking medication, Lodine, for his work-related injury. He
claimed the Lodine made him tired and sluggish and resulted in
his having difficulty getting to work on time. The commission
affirmed the deputy commissioner's finding that claimant's
testimony concerning the side effects of his medication was
unpersuasive to explain his chronic tardiness. Furthermore, no
evidence proved that the claimant sought to have his physician
adjust his medication. Thus, the commission was entitled to
discredit claimant's testimony, and we find no further support
for the suggestion that claimant's tardiness resulted from the
Lodine or any other factor beyond claimant's control.
The decision of the commission is accordingly affirmed.
Affirmed.
(..continued)
argument is procedurally barred; no reference to condonation was
made before either the deputy commissioner or the full
commission. Rule 5A:18.
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