COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Annunziata and Senior Judge Hodges 

Argued at Norfolk, Virginia 

DEMETRICE DIANE ALLEN 

 MEMORANDUM OPINION* BY 

v. Record No. 2178-95-1 JUDGE ROSEMARIE ANNUNZIATA 

 MAY 14, 1996 

NEWPORT NEWS SHIPBUILDING & 

 DRY DOCK COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Robert J. Macbeth, Jr. (Rutter & Montagna, on 

brief), for appellant. 

 Jonathan H. Walker (Melissa Robinson Link; 

Mason & Mason, on brief), for appellee. 

 Claimant, Demetrice Diane Allen, appeals the decision of the 

Virginia Workers' Compensation Commission reversing an award of 

temporary total disability benefits. Claimant was discharged 

from selective employment because she failed to maintain a 

security clearance required by her position. On appeal, claimant 

contends the commission erred in construing her discharge as an 

unjustified refusal of selective employment and in finding she 

had failed to cure her unjustified refusal. We affirm. 

 I 

 In January 1992, claimant sustained a compensable injury by 

accident while working for employer, Newport News Shipbuilding & 

Dry Dock Company. Employer subsequently procured selective 

employment for claimant within her physical restrictions, and 

 

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

designated for publication. 
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claimant returned to work with employer in a capacity 

commensurate with her physical ability. 

 As a condition of her employment, claimant was required to 

maintain a security clearance. In December 1993, claimant lost 

her security clearance and, as a result, was discharged. The 

parties agree that claimant was discharged solely because her 

clearance was revoked, not because of any disciplinary or 

performance problem. Claimant testified that she lost her 

clearance because she failed to maintain good credit. 

 The employment application claimant signed when she applied 

for work with employer states, in part: 

 If employed by the company, I understand that 

such employment is subject to the security 

policies of the company. I further 

understand and [sic] that if the position for 

which I am hired requires access to 

classified information and I am not able to 

obtain a security clearance, I will not be 

allowed to work in this position. My 

employment with the company in a position not 

requiring security clearance depends upon the 

existence of such a position for which I am 

qualified. 

In response to claimant's interrogatories, employer stated that 

it had some "administrative" positions in "Human Resources, 

Accounting, Treasury, Payroll, Management Cafeteria, Workers 

Compensation, Health Claims, etc." that did not require the 

employee to maintain a security clearance. Claimant's supervisor 

testified that, though an employee could not work in claimant's 

department without a security clearance, he thought other 

positions not requiring a security clearance existed elsewhere in 
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the company. The supervisor did not determine whether such jobs 

were available for claimant, and employer did not offer claimant 

a job in which a security clearance was not required. She also 

stated that she was not aware that such jobs existed and that she 

had not applied for one. 

 Subsequent to her termination, claimant received 

unemployment compensation while she looked for work. During the 

nineteen weeks claimant received unemployment, she applied for 

three jobs per week, seeking any position she could find. 

Claimant testified that she applied for fifty-two jobs after her 

unemployment benefits ceased in June 1994 until the date of the 

hearing. However, she remained unemployed from the time she was 

discharged through the date of the hearing, except for the period 

November 19 to December 18, 1994. Claimant was scheduled to 

start work April 15, 1995, the day after the hearing. 

 The deputy commissioner concluded that because claimant was 

terminated solely because she lost a qualification for 

employment, and not for wrongdoing, she had not unjustifiably 

refused her selective employment. The deputy commissioner found 

that the language in the employment application cited above 

establishes that employer could have procured a position for 

claimant which did not require a security clearance. Finding 

that employer had not offered claimant such a position, the 

deputy commissioner found that employer had withdrawn its offer 

of selective employment. The deputy commissioner also found that 
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claimant had made a reasonable effort to market her residual 

capacity. Therefore, the deputy commissioner awarded claimant, 

inter alia, (1) temporary total disability benefits from December 

19, 1993 to November 18, 1994 and from December 19, 1994 to April 

14, 1995; and (2) temporary partial disability benefits from 

November 19 to December 18, 1994. 

 The full commission concluded that claimant's loss of her 

security clearance amounted to an unjustified refusal of 

selective employment. Except for the period from November 19 to 

December 18, 1994, the commission found claimant's effort to 

secure employment inadequate. Accordingly, the commission 

reversed the temporary total benefits awards and affirmed the 

temporary partial benefits award. Claimant appeals the 

commission's reversal of temporary total disability benefits. We 

affirm. 

 II 

 The initial question we must decide is whether claimant's 

discharge, based solely on the revocation of her security 

clearance, amounts to an "unjustified refusal of selective 

employment," as the commission concluded, or to a withdrawal of 

selective employment, as the deputy commissioner concluded. "The 

[c]ommission's construction of the Act is entitled to great 

weight on appeal, . . . [but] the `conclusions of the 

[c]ommission upon questions of law, or mixed questions of law and 

fact, are not binding.'" City of Waynesboro v. Harter, 1 Va. 
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App. 265, 269, 337 S.E.2d 901, 903 (1985) (citations omitted). 

 A disabled employee's discharge from selective employment 

for reasons unrelated to her disability but for which she is 

responsible is equivalent to an unjustified refusal of selective 

employment. See Eppling v. Schultz Dining Programs, 18 Va. App. 

125, 130, 442 S.E.2d 219, 222 (1994) (claimant discharged for 

absenteeism caused by health problems unrelated to disability); 

American Furniture Co. v. Doane, 230 Va. 39, 43, 334 S.E.2d 548, 

550 (1985) (refusal of selective employment caused by unrelated 

health problems); Marval Poultry Co., Inc. v. Johnson, 224 Va. 

597, 599, 299 S.E.2d 343, 344 (1983) (claimant discharged for 

dishonesty); Goodyear Tire & Rubber Co. v. Watson, 219 Va. 830, 

833, 252 S.E.2d 310, 312-13 (1979) (claimant discharged for 

unsatisfactory performance at selective employment); Potomac 

Edison Co., Inc. v. Cash, 18 Va. App. 629, 631, 446 S.E.2d 155, 

156 (1994) (claimant discharged for willful misconduct); cf.

Washington Metropolitan Transit Authority v. Harrison, 228 Va. 

598, 600-01, 324 S.E.2d 654, 655-56 (1985) (where discharge from 

selective employment due to economic conditions was, effectively, 

a withdrawal of selective employment, entitling employee to a 

resumption of compensation upon making a reasonable effort to 

market his residual capacity); see generally A. Larson, The Law 

of Workmen's Compensation § 57.64(a) (1995). The rationale for 

this principle is that 

 when an employee's work-related disability 

has resolved itself to the point that the 

worker can return to gainful employment, he 
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or she is required to do so. An employer is 

not responsible for a disabled employee who 

is no longer unable to return to gainful 

employment because of his or her work-related 

injuries, but is prevented from doing so for 

other reasons. 

Eppling, 18 Va. App. at 130, 442 S.E.2d at 222. The standard for 

finding an unjustified refusal is not wrongdoing on the part of 

the employee that leads to discharge. See id. (claimant 

discharged for absenteeism caused by health problems unrelated to 

disability); Doane, 230 Va. at 43, 334 S.E.2d at 550 (refusal of 

selective employment due to unrelated health problems). 

 Here, claimant was discharged from selective employment due 

solely to her failure to maintain a security clearance, a reason 

wholly unrelated to her disability and for which she alone was 

responsible. We find that claimant's failure to maintain her 

qualifications for the light duty work employer offered amounts 

to an unjustified refusal of selective employment. 

 Claimant's argument that there can be no refusal of 

selective employment without an offer of selective employment is 

without merit. Employer clearly provided her selective 

employment. Claimant cites no authority for her proposition 

that, since other jobs were available at the shipyard that did 

not require a security clearance, her discharge amounted to a 

withdrawal of selective employment. Moreover, we find the 

language in the employment agreement is not determinative. An 

offer of selective employment was made, accepted, and later 

"unjustifiably refused." Assuming, without deciding, employer 
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had other positions available, it bore no duty to make a further 

offer. See National Linen Service v. McGuinn, 8 Va. App. 267, 

272 n.5, 380 S.E.2d 31, 34 n.5 (1989).1 

 Accordingly, we conclude that the commission did not err in 

construing claimant's discharge as an unjustified refusal of 

selective employment. 

 III 

 Next, we must decide whether the commission erred in finding 

claimant failed to cure her unjustified refusal of selective 

employment. On appeal, the findings of fact made by the 

commission will be upheld where supported by credible evidence. 

E.g., James v. Capitol Steel Const. Co., 8 Va. App. 512, 515, 382 

S.E.2d 487, 488 (1989). 

 An employee can "cure" an unjustified refusal of selective 

employment, and thereby become entitled to a resumption of 

benefits, by procuring employment paying a wage comparable to the 

wage the employee earned at the job unjustifiably refused. 

Burnette, 17 Va. App. at 79-80, 435 S.E.2d at 159-60; see also

Christiansen v. Metro Building Supply, Inc., 18 Va. App. 721, 

 1We note that had employer not offered or procured selective 

employment, or had it withdrawn the offer it made, claimant would 

have been entitled to receive benefits upon showing she had made 

a reasonable effort to market her residual capacity. See

Virginia Wayside Furniture, Inc. v. Burnette, 17 Va. App. 74, 79, 

435 S.E.2d 156, 159 (1993); see Ellerson v. Grubb Steel Erection 

Co., 1 Va. App. 97, 102, 335 S.E.2d 379, 382 (1985); cf.

Harrison, 228 Va. at 600-01, 324 S.E.2d at 655-56 (employee who 

lost selective employment due to economic condition of employer 

entitled to resumption of benefits after making reasonable effort 

to market residual capacity). 
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725, 447 S.E.2d 519, 521 (1994), rev'd on other grounds, 19 Va. 

App. 513, 453 S.E.2d 302 (1995). An employee may also cure an 

unjustified refusal of selective employment by making a good 

faith effort to obtain suitable employment. Burnette, 17 Va. 

App. at 79, 435 S.E.2d at 159. The rationale for such a rule is 

apparent in the legislative intent of Code § 65.2-510: "to 

encourage injured employees to seek selective employment rather 

than to remain unemployed unless the employer finds such 

employment for them." Id. (quoting Harrison, 228 Va. at 601, 324 

S.E.2d at 656). 

 Claimant testified that, pursuant to directions from the 

VEC, she applied for three positions per week for nineteen weeks. 

 However, she presented no evidence to show the dates of those 

contacts, the potential employers she contacted, the points of 

contact, the positions for which she applied, or whether the 

positions were within her physical restrictions. Claimant 

further testified that she applied for fifty-two positions after 

her unemployment compensation ceased in June 1994 until the date 

of the hearing. However, she presented no evidence to show the 

dates of those contacts or whether the positions were within her 

restrictions. Thus, we find that credible evidence supports the 

commission's finding that claimant failed to cure her 

unjustifiable refusal of selective employment by making a good 

faith effort to obtain suitable employment during the periods 

from December 19, 1993 to November 18, 1994 and from December 19, 
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1994 to April 14, 1995. 

 Accordingly, the decision of the commission is affirmed. 

Affirmed.