COURT OF APPEALS OF VIRGINIA 

Present: Judge Bray, Senior Judges Cole and Overton 

Argued at Richmond, Virginia 

CHEWNING & WILMER CONSTRUCTION 

AND 

PHOENIX INSURANCE COMPANY 

 MEMORANDUM OPINION* BY 

v. Record No. 0993-99-2 JUDGE NELSON T. OVERTON 

 JANUARY 27, 2000 

CORINTHIA D. CRUMP 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Warren H. Britt (Michael P. Del Bueno; 

Britt & Gnapp, on brief), for appellants. 

 Gerald G. Lutkenhaus for appellee. 

 Chewning & Wilmer Construction and its insurer (hereinafter 

referred to as "employer") appeal a decision of the Workers' 

Compensation Commission (commission) awarding temporary total 

disability benefits to Corinthia D. Crump (claimant) for the 

period from April 20, 1998 through June 17, 1998 and temporary 

partial disability benefits commencing June 18, 1998 and 

continuing. Employer contends that the commission erred in 

finding that it failed to prove that claimant was terminated for 

justified cause from selective employment on January 28, 1998, 

thereby barring her from receiving benefits under the Workers' 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication. 
Compensation Act. Finding no error, we affirm the commission's 

decision. 

 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 her 

employment benefits when discharged for a 

"justified" reason. 

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

S.E.2d 219, 221 (1994) (quoting Richmond Cold Storage Co. v.

Burton, 1 Va. App. 106, 111, 335 S.E.2d 847, 850 (1985)). "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). 

 An employee's "wrongful act" is the linchpin for a 

"justified" discharge--one which warrants forever barring 

reinstatement of workers' compensation benefits. See Eppling, 

18 Va. App. at 128-29, 442 S.E.2d at 221-22. Simply identifying 

or assigning "a reason attributable to the employee as the cause 

for his or her being discharged" is not sufficient to establish 

a forfeiture of benefits. Id. at 128, 442 S.E.2d at 221. 

 In the present case, the commission found that "the 

evidence fails to establish that claimant was terminated for 

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justified cause such as to preclude her from receiving further 

compensation benefits." That finding involves a mixed question 

of law and fact reviewable on appeal. See Helmick v. Economic

Development Corp., 14 Va. App. 853, 855, 421 S.E.2d 23, 24 

(1992). However, we are bound by the commission's underlying 

findings of fact if credible evidence supports them. 

 The commission found that the evidence established that 

claimant's absences were due to her need for medical attention 

and physical therapy or because she was unable to work due to 

back pain which was related to her compensable injury by 

accident. The commission further found that claimant did not 

fail to report her absences to employer and that prior to her 

termination date, employer had never reprimanded or warned 

claimant regarding her absenteeism. 

 The commission's factual findings are amply supported by 

claimant's unrebutted testimony, employer's records, and the 

medical records. As fact finder, the commission was entitled to 

conclude that claimant's testimony regarding the reasons for her 

absences and the circumstances surrounding her notification to 

employer of those absences was credible. Based upon the 

commission's factual findings, it could reasonably conclude that 

claimant was not terminated for a justified cause as required 

for a termination of benefits. 

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 Accordingly, we affirm the commission's decision. 

 Affirmed.

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