COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Baker and Coleman 

Argued by teleconference 

HUSS INC. and 

 AETNA CASUALTY & SURETY COMPANY 

 MEMORANDUM OPINION* BY 

v. Record No. 2527-95-2 CHIEF JUDGE NORMAN K. MOON 

 APRIL 30, 1996 

LEON E. ADAMS 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 F. Brawner Greer (John M. Oakey, Jr., 

McGuire, Woods, Battle & Boothe, L.L.P. on 

briefs), for appellants. 

 J. Gorman Rosenberger, Jr. (Wilson, Garbee & 

Rosenberger, on brief), for appellee. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 

 Huss, Inc. and its insurer appeal from the decision of the 

Workers' Compensation Commission that claimant Leon Adams' 

suspension of benefits was subject to cure. Huss argues that the 

commission arbitrarily disregarded the deputy commissioner's 

credibility findings, and that the suspension of benefits was not 

subject to cure because Adams was terminated for cause. We 

affirm the commission's decision. 

 Claimant Leon Adams was employed by Huss as a truck driver. 

 He sustained a compensable injury in a driving accident. About 

six weeks after the accident he returned to light duty work at 

Huss as a night watchman. The company already had one night 

watchman, who was on duty at the same time as the claimant. 
- 2 - 

 On June 20, 1994, Adams' supervisor reported to Ken Scott, 

director of safety for Huss, that the coin box of one of the 

vending machines had been vandalized and the coins stolen. Time 

cards had been burned, and a socket set and a radio were missing. 

 The first night watchman admitted vandalizing the machine and 

burning the time cards. It is unknown who took the tools and the 

radio. 

 Adams testified that he did not find out about the 

vandalized vending machine until the employer informed him by 

telephone. He did notice the burned time cards, apparently when 

he clocked out at the end of his shift. He stated that he 

reported the burned time cards to the watchman who relieved him. 

 He did not report the burned cards to his supervisor but 

"figured that guy would tell him because he was over me." 

 Adams testified that his supervisor told him to stay outside 

and make sure nothing was stolen out of the yard. He stated that 

he only went inside to use the bathroom. He also acknowledged 

that he was told to answer the telephone. He regarded the other 

watchman as primarily responsible for the inside of the building. 

 Ken Scott testified that the night watchmen were stationed 

in two connecting rooms, one where the vending machines were 

located and another with a desk, file cabinets, and the 

telephone. While he agreed that the claimant's duties included 

walking around the yard, Scott testified that Adams' description 

of his job did not "sound consistent" with the duties of a night 

watchman at Huss, and that Adams' supervisor had told him that he 
- 3 - 

did not tell Adams to stay outside. 

 Adams was fired from the light duty job as a result of the 

vandalization and theft. According to Huss, Adams was fired 

because he failed to do his job of patrolling the property, both 

inside and out, and because he failed to report the incidents to 

his supervisor. Huss does not accuse Adams of participating in 

the vandalism. 

 The deputy commissioner entered an award reflecting the 

payments already made but terminating the claimant's temporary 

partial disability benefits. The deputy commissioner found that 

the claimant's testimony that he was to stay outside and watch 

the building was not credible, and found that Scott's testimony 

to the contrary was credible. He also found incredible Adams' 

testimony that he did not know about the vandalized machine. In 

making these findings, he stated that he had considered the 

"demeanor" of the witnesses, but made no specific observation 

concerning demeanor. Based on his finding that Adams knew of the 

incidents and failed to report them to his supervisor, the deputy 

commissioner found that the employer had met its burden of 

proving that the claimant was terminated from selective 

employment for cause, and on that basis terminated the benefits. 

 The full commission reversed. It did not specifically 

address the deputy commissioner's credibility findings, but made 

opposite findings on the job description and the claimant's 

knowledge of the incidents. It found that the employer had to 

prove wilful misconduct, and had not done so. 
- 4 - 

 The commission disregarded the deputy commissioner's finding 

that the claimant's testimony was not credible. Where the deputy 

commissioner's findings on credibility are based on a recorded 

observation of a witness' demeanor or appearance, the commission 

cannot arbitrarily disregard such findings. Bullion Hollow 

Enterprises v. Lane, 14 Va. App. 725, 729, 418 S.E.2d 904, 907 

(1992); Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 

382-83, 363 S.E.2d 433, 437-38 (1987). Here, however, the deputy 

made no specific observation concerning the demeanor of the 

witnesses, but simply mentioned it in passing. Moreover, most of 

the factors affecting credibility appear in the record. In such 

circumstances, the commission could properly reverse the deputy 

commissioner's findings on credibility without articulating a 

specific reason for doing so. Bullion Hollow Enterprises, 14 Va. 

App. at 729, 418 S.E.2d at 907; Goodyear Tire and Rubber Co., 5 

Va. App. at 383, 363 S.E.2d at 438. 

 The commission held that Adams could cure the suspension of 

benefits because the employer did not show that he committed 

wilful misconduct. The employer argues that cure is barred with 

respect to any termination for cause that is unrelated to the 

employee's disability or health. 

 In Chesapeake & Potomac Telephone Co. of Virginia 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), the Court held that an employee terminated 

"for cause" from selective employment procured by the employer 

forfeits his right to cure by obtaining other employment. In 
- 5 - 

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

S.E.2d 219, 221 (1994), the Court stated that where an employee 

is discharged from selective employment, the discharge must be 

"justified" in order to warrant a permanent forfeiture of 

benefits. Not every discharge to which the employer can assign a 

reason is a "justified" discharge, and the commission errs if it 

does not consider the nature of the conduct leading to the 

discharge. Id. at 128-29, 442 S.E.2d at 221-22. In Eppling, the 

Court reversed the commission's ruling that the claimant was 

permanently barred from benefits on the ground that the 

employee's conduct was not "the type of wilful misconduct or 

misbehavior that, upon termination, justifies a forfeiture of 

workers' compensation benefits" under Murphy. Id. at 130, 442 

S.E.2d at 222. 

 The same is true here. We construe the evidence in the 

light most favorable to Adams, R.G. Moore Building Corp. v. 

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

Factual findings of the commission will not be disturbed on 

appeal, if based on credible evidence. Hercules, Inc. v. 

Gunther, 13 Va. App. 357, 361, 412 S.E.2d 185, 187 (1991). 

Viewing the evidence in the light most favorable to Adams and 

accepting his testimony as credible, Adams was guilty only of 

reporting the burning of the time cards to the wrong individual. 

 This does not constitute the sort of "wilful misconduct or 

misbehavior" that would justify a permanent forfeiture of 

benefits. For these reasons, we affirm the commission's 
- 6 - 

decision. 

 Affirmed.