JESSE L ANDERSON JR V DANA BRAKE PARTS INC ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
JESSE L. ANDERSON, JR.
MEMORANDUM OPINION*
v. Record No. 0772-02-2 PER CURIAM
JULY 30, 2002
DANA BRAKE PARTS, INC. AND
HARTFORD ACCIDENT & INDEMNITY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Jesse L. Anderson, Jr., pro se, on brief).
(S. Vernon Priddy III; Sands Anderson Marks &
Miller, on brief), for appellees.
Jesse L. Anderson (claimant) contends the Workers'
Compensation Commission erred in finding that Dana Brake Parts,
Inc. (employer) terminated claimant for just cause and,
therefore, he was not entitled to an award of temporary total
disability benefits from June 18, 1999 and continuing. Upon
reviewing the record and the parties' briefs, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
the commission's decision. Rule 5A:27. 1
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Because we summarily affirm the commission's decision, we
will not address employer's motion to dismiss claimant's appeal.
In addition, we will not address the commission's ruling that
claimant failed to prove he was entitled to an award of
permanent partial disability benefits for scarring. Claimant
did not make any argument or cite to any authorities with
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
"Under the Act, an employee who is properly terminated from
selective employment procured by the employer for cause
consisting of willful misconduct forfeits his or her entitlement
to future temporary partial disability benefits." Potomac
Edison Company v. Cash, 18 Va. App. 629, 631, 446 S.E.2d 155,
157 (1994). A claimant's return to total disability after a
termination for cause does not bar an award of temporary total
disability benefits, where the return to total disability was
unrelated to the misconduct. Id. at 633-34, 446 S.E.2d at 157.
In denying benefits to claimant and in ruling that employer
proved it terminated claimant for just cause, the commission
found as follows:
As a result of the June 18, 1999,
altercation with a co-worker, the claimant
was suspended from employment. The credible
evidence demonstrates that he was
subsequently terminated for cause as a
result of striking a co-worker and because
of his falsification of incentive records.
Accordingly, the claimant is not entitled to
any additional temporary partial disability
benefits beyond July 14, 1999, as the Deputy
respect to that issue. See Buchanan v. Buchanan, 14 Va. App.
53, 56, 415 S.E.2d 237, 239 (1992).
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Commissioner properly found that he was
terminated for just cause. As stipulated by
the parties, he had returned to his
pre-injury work effective May 24, 1999.
Accordingly, the claimant is not entitled to
any compensation benefits for the period of
June 18 through July 13, 1999, as any wage
loss during this period was attributable to
his misconduct and not the occupational
injury.
The hearing testimony of Lisa Green, employer's facility
health and safety supervisor, and William James Goranson,
employer's human resource manager, and the deposition testimony
of Frank Sanford, employer's production manager, provide ample
credible evidence to support the commission's findings that
claimant struck a co-worker and falsified incentive reports.
Their testimony supports the commission's conclusions that
claimant missed time from work between June 18, 1999 and his
termination on July 14, 1999 due to his suspension pending an
investigation of his misconduct and that employer terminated
claimant on July 14, 1999 for just cause due to his willful
misconduct. As fact finder, the commission was entitled to
accept the testimony of employer's witnesses and to reject
claimant's testimony to the contrary. It is well settled that
credibility determinations are within the fact finder's
exclusive purview. Goodyear Tire & Rubber Co. v. Pierce, 5 Va.
App. 374, 381, 363 S.E.2d 433, 437 (1987). "The fact that there
is contrary evidence in the record is of no consequence if there
is credible evidence to support the commission's decision."
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Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d
32, 35 (1991).
For these reasons, we affirm the commission's decision.
Affirmed.
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