COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Humphreys and Senior Judge Duff 

TAMMY J. TAYLOR 

 MEMORANDUM OPINION*

v. Record No. 1963-00-3 PER CURIAM 

 DECEMBER 12, 2000 

JAMES MADISON UNIVERSITY AND 

 COMMONWEALTH OF VIRGINIA 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (A. Thomas Lane, Jr., on brief), for 

appellant. 

 (Mark L. Earley, Attorney General; Judith 

Williams Jagdmann, Deputy Attorney General; 

Gregory E. Lucyk, Senior Assistant Attorney 

General; Donald G. Powers, Assistant Attorney 

General, on brief), for appellees. 

 Tammy J. Taylor contends that the Workers' Compensation 

Commission erred in denying her claim for an award of temporary 

total disability benefits for the period from August 14, 1999 

through August 26, 1999. Upon reviewing the record and the 

briefs of the parties, we conclude that this appeal is without 

merit. Accordingly, we summarily affirm the commission's 

decision. See Rule 5A:27. 

 On appeal, we view the evidence in the light most favorable 

to the prevailing party below. See R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 

 

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

designated for publication. 
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Factual findings made by the commission will be upheld on appeal 

if supported by credible evidence. See James v. Capitol Steel 

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). 

 The commission denied Taylor an award of temporary total 

disability benefits for the period from August 14, 1999 through 

August 26, 1999 on the ground that her discharge constituted an 

unjustified refusal of selective employment. As support for its 

ruling, the commission found as follows: 

[C]laimant, age 37, injured her back, neck, 

and shoulder while lifting trash into a 

dumpster on July 13, 1999. The claim was 

accepted as compensable, and the claimant 

underwent physical therapy for neck and back 

strain. She was released to full duty on 

August 26, 1999. She was working for 

employer in a light duty capacity when on 

August 13, 1999, she left work because she 

soiled her clothing. When the claimant 

returned to work four hours later, she was 

terminated for excessive absenteeism. As a 

new employee, she was still on probation 

with the employer. 

 Vickie Dovel, the claimant's 

supervisor, stated that the claimant 

received a verbal warning about absenteeism 

on July 15, 1999. The claimant began her 

employment with the employer on June 10, 

1999. She was absent on June 10 and 11 for 

a death in the family. Prior to her injury, 

she missed June 23, June 29, June 30 and 

July 12, 1999, for various reasons. She 

missed work on August 6, 1999, for a family 

illness and on August 13, 1999, she was gone 

from work for four hours because she soiled 

her clothes twice. She lived one-half hour 

from work. 

 These findings are supported by credible evidence. Thus, 

these findings are binding and conclusive upon us. 
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 Based upon this record, the commission did not err in 

concluding that Taylor's excessive absenteeism, unrelated to her 

injury, constituted an unjustified refusal of selective 

employment, and in denying her benefits for the period from 

August 14, 1999 through August 26, 1999. In Eppling v. Schultz 

Dining Programs, 18 Va. App. 125, 442 S.E.2d 219 (1994), we 

recognized that "[a]lthough Eppling's employer had 'cause' for 

terminating her selective employment due to excessive 

absenteeism, her absences were due to health problems and not 

due to 'wrongful act[s]' that 'justified' her dismissal so as to 

permanently deprive Eppling of having her workers' compensation 

benefits reinstated." Id. at 129, 442 S.E.2d at 222. Under 

Eppling, a discharge for "cause" related to excessive 

absenteeism, although not constituting a wrongful act that 

justifies permanent forfeiture of benefits, is sufficient to 

find an unjustified refusal of selective employment. See id. at 

130, 442 S.E.2d at 222. Such a finding bars the employee from 

receiving benefits until the employee takes sufficient steps to 

"cure" the refusal. See id. at 130-31, 442 S.E.2d at 222. 

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

 Affirmed.