Opinion
Record No. 1872-93-4
April 5, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Paul Fiscella, on briefs), for appellant.
(John E. McIntosh, Jr., Carolyn J. Airing; Crews Hancock, on brief), for appellees.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission (commission). Rule 5A:27. As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.
Cosandra Willis (claimant) contends that the commission erred in (1) denying her petition to vacate the award; and (2) terminating her award of benefits on the ground that she was terminated for cause from light duty work procured for her by Goodwin House West (employer).
I. Petition to Vacate the Award
On appeal, claimant contends that the commission erred when it failed to grant her petition to vacate the award. She argues that employer was guilty of fraud, mistake or imposition upon the commission and/or claimant by not presenting certain evidence and witnesses.
Claimant asserts that her supervisor, Regina Freestone, who did not testify before the commission but who did testify at the Virginia Employment Commission (VEC) hearing, would have provided testimony to contradict employer's evidence that medical documentation was required of claimant every time she was absent from work. Due to this inconsistency between Freestone's testimony given at the VEC hearing and the testimony provided to the commission by employer's personnel manager, claimant asserts that employer perpetrated a fraud upon the commission and that the award should have been set aside. Claimant also asserts that employer omitted certain documentary evidence and facts from its evidence, which misled the commission and resulted in fraud, mistake or imposition.
In essence, claimant contends that she failed to impeach employer's witness at the initial hearing before the commission, and that she should have been permitted another opportunity to do so. However, the testimony presented at the VEC hearing, the additional medical evidence, and the call-in sheets sought to be introduced by claimant through her petition to vacate were available and could have been obtained through the exercise of due diligence prior to the hearing conducted before the commission on February 1, 1993. Thus, the commission did not err in refusing to reopen the hearing for the presentation of such evidence. See Mize v. Rocky Mount Ready Mix, Inc., 11 Va. App. 601, 614, 401 S.E.2d 200, 207 (1991) (failure to obtain medical records which were available and known does not constitute due diligence).
II. Termination From Light Duty
On appeal, the evidence must be construed in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). Factual findings of the commission will be upheld if supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 833, 835 (1989). "Where reasonable inferences may be drawn from the evidence in support of the commission's factual findings, they will not be disturbed by this Court on appeal." Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988) (citation omitted).
An employee discharged for cause while on selective employment procured for him by his employer forfeits his right to compensation benefits. Chesapeake Potomac Telephone Co. v. Murphy, 12 Va. App. 633, 637, 406 S.E.2d 190, 191-92,aff'd on reh'g en banc, 13 Va. App. 304, 411 S.E.2d 444 (1991).
The commission found that claimant was discharged due to excessive absenteeism. This finding is supported by credible evidence, including employer's records and the testimony of its personnel manager, Brynne Fisher.
Fisher stated that "excessive absenteeism" constituted excused and unexcused absences. She defined "unexcused absences" as those for which the employee failed to call in, called in too late, and/or did not provide sufficient documentation. Claimant admitted that she signed a document, dated March 3, 1990, which provided that, due to excessive absences in the past, she was required to provide a certification from a physician to support any future claim of illness. In terminating claimant's benefits, the commission made the following factual findings:
We note that the VEC did not have this evidence before it at the time it issued its decision.
Approximately 26 periods of absences are documented by the employer's records, some of which involve more than one day. Approximately 23 days of work missed by the claimant occurred on weekends when she objected to working. Of the 26 periods, the claimant was excused from working 15 days. Most of these excuses were based on back pain, but at least five were based on other non-work related reasons. The claimant was counseled on five occasions between December 18, 1991 and August 21, 1992, regarding her excessive absenteeism and its consequences.
These findings are supported by credible evidence and will not be disturbed on appeal. "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."Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991) (citation omitted). Based upon this record, the fact finder reasonably could have concluded that claimant's record of absences and the subsequent counseling sessions made her aware of employer's requirements with regard to absences and that she continually failed to meet those requirements. Accordingly, we cannot say that the commission erred in determining that claimant was terminated for cause from the light duty position procured for her by her employer.
We note that our holding in Timbrook v. O'Sullivan Corp., 17 Va. App. ___, ___ S.E.2d ___ (1994), does not control this case. In Timbrook, the claimant was terminated for refusing to report for selective employment after her doctor released her to return to light work. We specifically found that a claimant's failure to report for selective employment "is not a discharge for cause unrelated to an injured employee's disability."Id. at ___, ___ S.E.2d at ___. Here, however, claimant reported for light duty work, but was later terminated for excessive absenteeism in violation of the employer's rules. Claimant's absenteeism, unrelated to her injury, justified her termination.
For the reasons stated, we affirm the commission's decision.
Affirmed.