COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Agee and Senior Judge Hodges 

Argued at Chesapeake, Virginia 

TRANSPORTATION SAFETY CONTRACTING 

 AND ST. PAUL FIRE & MARINE 

 INSURANCE COMPANY 

 MEMORANDUM OPINION* BY 

v. Record No. 1713-00-1 JUDGE JAMES W. BENTON, JR. 

 MAY 22, 2001 

ROBERT A. MARTIN, SR. 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 R. Ferrell Newman (Thompson, Smithers, 

Newman, Wade & Childress, on brief), for 

appellants. 

 John H. Klein (Montagna, Klein & Camden, 

L.L.P., on brief), for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Transportation Safety Contracting contends that the Workers' 

Compensation Commission erred (1) in reinstating the disability 

benefits of Robert A. Martin, Sr., after Transportation Safety 

terminated his selective employment and (2) by declining to 

apply Code § 65.2-510(B) to bar Martin's compensation benefits 

based upon his wages at his new employment. We affirm the 

commission's award. 

 I. 

 Viewed in the light most favorable to Martin, who prevailed 

before the commission, see Allen & Rocks, Inc. v. Briggs, 28 Va. 
App. 662, 672, 508 S.E.2d 335, 340 (1998), the evidence proved 

that Martin injured his head and back while employed as an 

electrical foreman for Transportation Safety. Prior to his 

injury by accident, Martin was a commendable employee. The 

record establishes that Martin had received substantial 

financial bonuses and was knowledgeable about Transportation 

Safety's business. Based on a memorandum of agreement, the 

commission entered an award granting Martin temporary total 

disability benefits. 

 Martin testified that while he was healing from his injury 

he had to visit Transportation Safety on several occasions 

because "they were not paying the [medical] bills on time and 

[he] was receiving notice that [his] credit was going to be 

damaged." Martin also testified that during these visits 

several employees informed him that the division manager said he 

"had been drinking and drugging" the day of his injury. The 

evidence proved, however, that another employee's negligence 

caused Martin's injury. Martin testified that Transportation 

Safety had not given its employees safety manuals and that the 

failure to have them created unsafe conditions. 

 When Martin was released to return to work in light duty, 

Transportation Safety offered him an office position, where he 

was able to use his computer skills. Martin testified that he 

used his personal funds and Transportation Safety's computers to 

establish an internet presence to facilitate Transportation 

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Safety's business efficiency. Martin also testified that after 

he began his selective employment several employees again told 

him that the division manager had suggested that Martin had 

sustained his injury because he had been under the influence of 

drugs or alcohol. When Martin went to the division manager to 

complain about those statements, the division manager blamed 

other employees for spreading rumors. During that discussion, 

Martin also talked with the division manager about the lack of 

safety manuals on the day of his accident. Martin testified 

that he did so because after he returned to work he learned from 

the office manager that "she had to call the home office . . . 

and request a copy" of the safety manual. 

 The office manager testified that after Martin returned to 

work in his light duty employment he began "badmouthing the 

employees," including the employee whose negligence led to 

Martin's injury. She heard Martin say that the employees were 

incompetent and that "he'd trusted a fellow employee and he 

would never do that again." She reported Martin's complaints to 

the division manager. That same day, the division manager met 

with Martin in her presence to discuss "what the problem was; 

why was [Martin] unhappy; why was he saying all these things." 

During that meeting, the division manager acknowledged that he 

had made inquiries of the employees about whether Martin had 

used drugs. The office manager said Martin "took offense to 

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that." She testified that when the division manager asked what 

he could do to remedy the situation, Martin said, "fire me." 

 The division manager testified that when Martin returned 

from his injury, Martin complained about the lack of safety 

manuals. The division manager testified, however, that a safety 

manual was in the office file and on the table but said Martin 

"may not have been aware of it." The division manager also 

testified that he met with Martin and the office manager after 

she reported that Martin was unhappy. During that meeting, the 

division manager denied that he had accused Martin of drug use. 

He admitted, however, that he had investigated such a rumor and 

that the investigation had ended when he "found out that no one 

knew anything about it." The division manager testified that 

Martin became angry about these allegations. When he asked 

Martin what he could do to remedy the situation, Martin said, 

"fire me." The division manager ended the meeting but later met 

with Martin and terminated his employment. The division manager 

testified that he believed this was a "mutually acceptable 

parting of the ways." 

 Martin testified that during the meeting, he told the 

division manager he believed the rumors of drug use slandered 

him. He said he objected to the manner in which the inquiries 

were made. Martin testified that the division manager became 

"very defensive about that and several times . . . [said] not 

only that he did not have to let [Martin] come back to work, but 

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that he could always fire [Martin]." Martin testified that 

"after growing weary of [the discussion, he] said, go ahead if 

that's what you feel necessary to do." The division manager 

left the meeting and later terminated him, saying Martin "just 

could not give 100 percent anymore." 

 II. 

 In pertinent part, Code § 65.2-510(A) provides that "[i]f 

an injured employee refuses employment procured for him suitable 

to his capacity, he shall only be entitled to the benefits 

provided for in [Code] §§ 65.2-503 and 65.2-603 . . . during the 

continuance of such refusal, unless in the opinion of the 

Commission such refusal was justified." Applying the 

predecessor statute, we held in Chesapeake & Potomac Telephone 

Co. v. Murphy, 12 Va. App. 633, 406 S.E.2d 190, aff'd on reh'g, 

13 Va. App. 304, 411 S.E.2d 444 (1991), that an employee who is 

terminated for justifiable cause from selective employment that 

is procured by the employer forfeits the right to cure this 

termination by obtaining other employment. 12 Va. App. at 

639-40, 406 S.E.2d at 193. Later, we further explained the rule 

as follows: 

 When a disabled employee is discharged 

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 

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. . . 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. 

Eppling v. Schultz Dining Programs, 18 Va. App. 125, 128, 442 

S.E.2d 219, 221 (1994) (citations omitted). 

 Applying the well established standard of review, we are 

required to uphold the commission's factual findings when they 

are supported by credible evidence. Code § 65.2-706; James v. 

Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 

488 (1989). Furthermore, any reasonable inferences the 

commission draws from credible evidence "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). The commission 

accepted Martin's testimony and found as follows: 

The claimant's negative attitude that 

developed after his return to work was, in 

part, related to the work injury. His 

initial job enthusiasm upon returning to 

selective work evolved into a poor attitude 

after the claimant learned of his 

supervisor's comments that drugs or alcohol 

had contributed to the work injury and that 

the company had failed to order safety 

manuals after the accident. The claimant's 

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termination for having a poor attitude did 

not rise to the level of justified cause. 

 Further, we find that the claimant did 

not unjustifiably refuse selective 

employment on May 12, 1999. It appears that 

the employer withdrew its offer of selective 

employment upon a determination that the 

claimant's attitude was incompatible with 

the business rules. The record does not 

establish that the claimant attempted to 

sabotage selective employment procured by 

the pre-injury employer through 

communicating his poor attitude. We note 

again no evidence of deterioration in the 

claimant's work performance during this 

period. 

 Martin's testimony, which the commission found to be 

credible, supports these findings. He testified that his 

dissatisfaction arose from several events related to his job 

related injury. Initially, he expressed his concern about 

Transportation Safety's delay in paying his medical expenses, 

which he believed threatened his credit standing. Martin also 

voiced his concern about the division manager's inquiry 

concerning allegations of Martin's possible drug and alcohol 

use. The inquiry showed the allegation had no basis, but the 

investigation caused Martin distress because his toxicology 

reports established no drugs or alcohol in his system and the 

accident was established to have been caused by the negligence 

of another employee. 

 In addition, Martin testified that no safety manuals had 

been given to employees prior to his injury and that the absence 

of manuals contributed to his injury. Although the division 

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manager testified that there was a manual in his file and on a 

desk outside his office, he acknowledged that Martin, who was a 

foreman, may not have been made aware of those manuals. Martin 

testified, however, that the office manager told him that she 

had only requested safety manuals after his injury. He further 

testified that "still, to this day; [he has] . . . never seen a 

[safety] manual with Transportation Safety." 

 In Richmond Cold Storage Co. v. Burton, 1 Va. App. 106, 335 

S.E.2d 847 (1985), we upheld the commission's ruling that an 

employer's discharge of an employee "for misconduct does not 

bind the Commission in its inquiry whether [the employee] is 

precluded from claiming benefits due to a justified dismissal." 

Id. at 109, 335 S.E.2d at 849. Later, in Eppling, we ruled that 

not every discharge, even if supported by a reason, is a 

"justified" discharge. 18 Va. App. at 128, 442 S.E.2d at 221. 

The commission is required "to consider the nature of [the] 

conduct," which is alleged to constitute the cause or to justify 

the dismissal. Id. at 129, 442 S.E.2d at 221. Thus, we held 

that even if the employer can assign a reason for discharge, not 

every "type of willful conduct or misbehavior [arises to the 

level] that, upon termination, justifies a forfeiture of 

workers' compensation benefits [under Murphy]." 18 Va. App. at 

130, 442 S.E.2d at 222. 

 Although the office manager testified in this case that 

Martin made derogatory comments to her and was heard to have 

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made such comments to other employees concerning the staff and 

the safety policies, the record indicates that neither the 

office manager nor the division manager put any written warnings 

or adverse comments in Martin's personnel file. The record also 

indicates that Martin's comments primarily concerned the 

employees involved in the incident of his injury. 

 Credible evidence also supports the commission's finding 

that Martin's "negative attitude [arose] after [he] learned of 

[the division manager's] comments that drugs or alcohol had 

contributed to the work injury and that [Transportation Safety] 

had failed to order safety manuals." Further, the record 

contains credible evidence to support the commission's finding 

that these issues are related to Martin's perceptions that his 

accident was avoidable and that he was the subject of an 

unjustifiable investigation into his character following an 

accident that was caused by another employee's negligence. 

 Furthermore, Martin's behavior does not resemble the 

behavior of the employees in Marval Poultry Co. v. Johnson, 224 

Va. 597, 299 S.E.2d 343 (1983), or Goodyear Tire & Rubber Co. v. 

Watson, 219 Va. 830, 252 S.E.2d 310 (1979). We used those cases 

in Eppling to illustrate what constitutes justification for 

terminating an employee on selective work status. In Marval 

Poultry, the Supreme Court determined that an employer was 

justified in dismissing an employee for his dishonesty. 224 Va. 

at 601, 299 S.E.2d at 346. In Goodyear, the Court held that an 

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employer was justified in dismissing an employee for poor work 

and excessive absenteeism. 219 Va. at 833, 252 S.E.2d at 313. 

In this case, the evidence demonstrated that Martin was a 

productive employee with no problems with truthfulness or 

misconduct. 

 As the commission properly ruled, Code § 65.2-510(B) is 

only applicable in cases where the employee unjustifiably 

refuses selective employment. The division manager's 

termination of Martin was a withdrawal of its selective 

employment upon his belief that Martin's attitude was not 

compatible with continued employment. We hold that the evidence 

supports the commission's ruling that this reason does not 

disqualify Martin for a continuation of benefits. Because we 

affirm the commission's ruling that Martin did not unjustifiably 

refuse employment, Transportation Safety's second issue is moot. 

 For these reasons, we affirm the commission's award. 

 Affirmed. 

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