William Hazel Companies,et al. v. Jesse R. Creswell

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,
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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.
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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
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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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