COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Overton 

Argued at Richmond, Virginia 

NATIONAL NURSE SERVICES/ATLIS HEALTH 

 SERVICES, INC. AND FIDELITY & 

 CASUALTY INSURANCE COMPANY 

 MEMORANDUM OPINION* BY 

v. Record No. 1451-96-2 JUDGE JAMES W. BENTON, JR. 

 JANUARY 7, 1997 

DONNA PATRICIA SWAN 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Ruth Nathanson (Midkiff & Hiner, P.C., on 

brief), for appellants. 

 Gerald G. Lutkenhaus for appellee. 

 On this appeal, National Nurse Services/Atlis Health 

Services, Inc. and Fidelity & Casualty Insurance Company, jointly 

designated "the employer," contend that the commission erred in 

finding (1) that the employer was not justified in terminating 

Donna Swan from selective employment and (2) that Swan adequately 

marketed her residual capacity. Because the commission's 

findings are supported by credible evidence, we affirm the award. 

 I. 

 The following is the well established standard of appellate 

review from decisions of the commission: 

 We do not retry the facts before the 

Commission nor do we review the weight, 

preponderance of the evidence, or the 

credibility of witnesses. If there is 

evidence or reasonable inference that can be 

drawn from the evidence to support the 

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

designated for publication. 
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Commission's findings, they will not be 

disturbed by this Court on appeal, even 

though there is evidence in the record to 

support contrary findings of fact. 

Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d 

507, 510-11 (1983). 

 The following principles are also well established: 

 When a disabled employee is discharged from 

selective employment, the "inquiry focuses on 

whether the [employee's] benefits may 

continue in light of [her] 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. 

 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. "[T]he Commission . . . 

must be mindful of the purposes and goals of 

the" Act. 

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

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

 Debbie Vaughters, the employer's human resources manager, 
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testified that Swan was terminated on March 19, 1995, after 

Vaughters received information in a written report that Swan had 

been verbally abusive to a patient at a mental hospital. Swan 

denied that she was terminated on that date and also that she 

verbally abused the patient. Swan testified that when she was 

attempting to give medication to a mental patient who had a 

history of injuring other nurses, the patient repeatedly lashed 

out at her, "slinging his shirt like he wanted to physically hit 

[her] with it." Swan further testified that she met with 

Vaughters on May 9, 1995, and Vaughters indicated that she would 

investigate the incident. Swan testified that on June 1, 1995 

she received a telephone call from the employer offering her a 

work assignment. 

 The commission accepted Swan's testimony and made the 

following findings: 

 The record reflects that, after November 

17, 1994, [Swan] was released to light duty 

and continued to work in that capacity with 

her preinjury employer. It is axiomatic 

that, where an employer withdraws an offer of 

light work without justification, the 

employee is entitled to resumption of 

temporary total disability benefits. Here, 

we find that the employer withdrew its offer 

of light work on March 19, 1995. After that 

date, the employer gave [Swan] no further 

assignments and paid her no further salary. 

Further, we find that the withdrawal of the 

offer of light work was not justified. There 

is no evidence before us that the seven 

clients who requested that [Swan] not be 

assigned to their case did so because of her 

misconduct. Neither does the evidence 

establish that she was verbally abusive to a 

patient on March 19, 1995, the asserted basis 

for her termination. Contradictory evidence 
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was presented on this point. 

 These findings are supported by credible evidence in the 

record. Accordingly, we uphold the decision that Swan's 

dismissal for misconduct was not proved to be justified. 

 II. 

 "A disabled employee with residual marketable capacity who 

claims entitlement to benefits for total work incapacity must 

prove that he or she has made a reasonable attempt to procure 

work, but has been unable to market his or her remaining work 

capacity." The Greif Co. v. Sipe, 16 Va. App. 709, 715, 434 

S.E.2d 314, 318 (1993). In reviewing the commission's finding 

that Swan made a reasonable effort to market her residual 

capacity, we must consider the evidence in the light most 

favorable to the finding of the commission. See Wood v. Virginia 

Employment Comm'n, 20 Va. App. 514, 517, 458 S.E.2d 319, 320 

(1995). 

 The commission made the following findings: 

 From March 19 through April 23, 1995, [Swan] 

contacted ten potential employers and 

submitted four applications for employment. 

We find this effort sufficient to meet [her] 

duty to market. On April 24, 1995, [Swan] 

obtained part-time employment as a 

babysitter, earning $60 per week. 

Thereafter, [she] continued her marketing 

efforts, efforts which we also find adequate. 

 In addition to Swan's testimony detailing her search for 

employment, the record contains an exhibit that supported her 

testimony. The exhibit, which was introduced at the evidentiary 
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hearing, listed the entities that Swan contacted for employment. 

 That evidence provides credible support for the commission's 

findings. 

 Accordingly, we affirm the commission's award. 

 Affirmed.