National Nurse Services v. Donna P. Swan ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Overton
Argued at Richmond, Virginia
NATIONAL NURSE SERVICES/ATLIS HEALTH
SERVICES, INC. AND FIDELITY &
CASUALTY INSURANCE COMPANY
MEMORANDUM OPINION * BY
v. Record No. 1451-96-2 JUDGE JAMES W. BENTON, JR.
JANUARY 7, 1997
DONNA PATRICIA SWAN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Ruth Nathanson (Midkiff & Hiner, P.C., on
brief), for appellants.
Gerald G. Lutkenhaus for appellee.
On this appeal, National Nurse Services/Atlis Health
Services, Inc. and Fidelity & Casualty Insurance Company, jointly
designated "the employer," contend that the commission erred in
finding (1) that the employer was not justified in terminating
Donna Swan from selective employment and (2) that Swan adequately
marketed her residual capacity. Because the commission's
findings are supported by credible evidence, we affirm the award.
I.
The following is the well established standard of appellate
review from decisions of the commission:
We do not retry the facts before the
Commission nor do we review the weight,
preponderance of the evidence, or the
credibility of witnesses. If there is
evidence or reasonable inference that can be
drawn from the evidence to support the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Commission's findings, they will not be
disturbed by this Court on appeal, even
though there is evidence in the record to
support contrary findings of fact.
Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d
507, 510-11 (1983).
The following principles are also well established:
When a disabled employee is discharged from
selective employment, the "inquiry focuses on
whether the [employee's] benefits may
continue in light of [her] 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.
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. "[T]he Commission . . .
must be mindful of the purposes and goals of
the" Act.
Eppling v. Schultz Dining Programs, 18 Va. App. 125, 128, 442
S.E.2d 219, 221 (1994) (citations omitted). "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).
Debbie Vaughters, the employer's human resources manager,
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testified that Swan was terminated on March 19, 1995, after
Vaughters received information in a written report that Swan had
been verbally abusive to a patient at a mental hospital. Swan
denied that she was terminated on that date and also that she
verbally abused the patient. Swan testified that when she was
attempting to give medication to a mental patient who had a
history of injuring other nurses, the patient repeatedly lashed
out at her, "slinging his shirt like he wanted to physically hit
[her] with it." Swan further testified that she met with
Vaughters on May 9, 1995, and Vaughters indicated that she would
investigate the incident. Swan testified that on June 1, 1995
she received a telephone call from the employer offering her a
work assignment.
The commission accepted Swan's testimony and made the
following findings:
The record reflects that, after November
17, 1994, [Swan] was released to light duty
and continued to work in that capacity with
her preinjury employer. It is axiomatic
that, where an employer withdraws an offer of
light work without justification, the
employee is entitled to resumption of
temporary total disability benefits. Here,
we find that the employer withdrew its offer
of light work on March 19, 1995. After that
date, the employer gave [Swan] no further
assignments and paid her no further salary.
Further, we find that the withdrawal of the
offer of light work was not justified. There
is no evidence before us that the seven
clients who requested that [Swan] not be
assigned to their case did so because of her
misconduct. Neither does the evidence
establish that she was verbally abusive to a
patient on March 19, 1995, the asserted basis
for her termination. Contradictory evidence
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was presented on this point.
These findings are supported by credible evidence in the
record. Accordingly, we uphold the decision that Swan's
dismissal for misconduct was not proved to be justified.
II.
"A disabled employee with residual marketable capacity who
claims entitlement to benefits for total work incapacity must
prove that he or she has made a reasonable attempt to procure
work, but has been unable to market his or her remaining work
capacity." The Greif Co. v. Sipe, 16 Va. App. 709, 715, 434
S.E.2d 314, 318 (1993). In reviewing the commission's finding
that Swan made a reasonable effort to market her residual
capacity, we must consider the evidence in the light most
favorable to the finding of the commission. See Wood v. Virginia
Employment Comm'n, 20 Va. App. 514, 517, 458 S.E.2d 319, 320
(1995).
The commission made the following findings:
From March 19 through April 23, 1995, [Swan]
contacted ten potential employers and
submitted four applications for employment.
We find this effort sufficient to meet [her]
duty to market. On April 24, 1995, [Swan]
obtained part-time employment as a
babysitter, earning $60 per week.
Thereafter, [she] continued her marketing
efforts, efforts which we also find adequate.
In addition to Swan's testimony detailing her search for
employment, the record contains an exhibit that supported her
testimony. The exhibit, which was introduced at the evidentiary
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hearing, listed the entities that Swan contacted for employment.
That evidence provides credible support for the commission's
findings.
Accordingly, we affirm the commission's award.
Affirmed.
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