Opinion
Record No. 1736-93-2
May 3, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Brian J. Cusce, on brief), for appellant.
(John M. Oakey; McGuire, Woods, Battle Boothe, on brief), for appellees.
Present: Judges Benton, Coleman and Willis
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Gregory C. Gainer appeals from a decision of the Workers' Compensation Commission finding that he was discharged for cause from light work procured by his employer, National Boiler Services. Gainer contends that the commission erred in (1) allowing the employer to rely on the defense of Gainer's discharge for cause from selective employment where the employer denied compensability of the April 24, 1992 injury; (2) finding that Gainer was terminated for cause from selective employment where the evidence proved Gainer was unable to perform the selective employment, and the employer failed to prove that bona fide selective employment was provided; (3) finding that Gainer failed to prove that his disability was causally related to his April 24, 1992 injury by accident; and (4) failing to consider after-discovered evidence. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the commission's decision. Rule 5A:27.
On February 20, 1992, Gainer dislocated his right shoulder while housecleaning at home. He sought medical treatment at a hospital where a successful shoulder reduction was performed under general anesthesia. Following this incident, Gainer was treated by Dr. Ralph D. Neal, Jr. Gainer remained out of work for two to three weeks after the incident.
In April 1992 Gainer commenced work for employer as a tube welder. On April 24, 1992, Gainer injured his right shoulder when a metal pipe fell on his back. At the hearing on Gainer's application for compensation, the employer stipulated that an injury by accident occurred on April 24, 1992.
Three days after the April 24, 1992 injury, the employer referred Gainer to Dr. Eddie Z. Guilaran, who diagnosed a right shoulder stretch strain. An x-ray performed on April 27, 1992 confirmed a normal right shoulder with no evidence of fracture or dislocation. Dr. Guilaran restricted Gainer to light duty work and prescribed medication and a sling. Dr. Guilaran's notes do not mention Gainer's February 20, 1992 shoulder dislocation. The record establishes that at the time of the April injury, Gainer was still taking medication for treatment of the February 20, 1992 shoulder dislocation.
Robert K. Hunter, the boiler superintendent, testified by deposition that he was aware of Gainer's shoulder injury and referred Gainer to Dr. Guilaran. Hunter testified that, after he discussed Gainer's condition with Dr. Guilaran, Gainer was assigned to a light duty welding job with no heavy lifting.
Shortly after Gainer returned to light duty work, a quality control worker discovered that Gainer had blown a hole in a tube he was welding and had attempted to hide it by plugging the hole. When confronted with this information, Gainer denied the accusation. Hunter testified that it is obvious when a hole is blown in a tube and obvious when it has been covered up. Gainer testified that he knew it was a serious violation to blow a hole in a tube and cover it up. The employer terminated Gainer for this boiler code violation. Hunter testified that Gainer would still be employed if not for this incident. After his termination, Gainer returned to his home in Alabama.
On May 11, 1992, Gainer returned to Dr. Neal for treatment. Dr. Neal noted a questionable shoulder dislocation. On June 3, 1992, Dr. Albert Haas noted that Gainer was suffering from muscle spasms in the right shoulder. On June 20, 1992, Gainer sustained another dislocation of his right shoulder while waving goodbye to friends. Dr. Gill Holland issued a disability slip to Gainer on June 20, 1992, which stated that he was not to work and that he needed surgery.
In a September 21, 1992 letter from Dr. Haas to Gainer's attorney, Dr. Haas opined that the history of injury that he received from Gainer related his right shoulder pain to the April 24, 1992 incident. Dr. Haas stated that he had received no information from Gainer that indicated another possible cause. In an October 5, 1992 letter from Dr. Neal to Gainer's attorney, Dr. Neal stated that he was never made aware of any injury occurring on April 24, 1992 and that all of Gainer's injuries after February 20, 1992 related back to the February 20, 1992 injury.
Because the employer stipulated to an injury by accident, we find no merit in Gainer's first contention. The commission found that the April 24, 1992 incident caused a partially disabling right shoulder strain and that Gainer was released to light duty work. This finding is supported by credible evidence, including Dr. Guilaran's records and claimant's own testimony, and thus it will be upheld on appeal. See James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
The finding that Gainer failed to prove a causal connection between the April 24, 1992 incident that caused a strain and his later diagnosed shoulder dislocation is also supported by credible evidence. Only Dr. Haas related Gainer's post-April 1992 shoulder dislocation to the April 24, 1992 accident. As noted above, however, he was unaware of Gainer's original February 20, 1992 injury. When a doctor's conclusion regarding the relation of an injury to an accident "rest[s] upon a faulty premise, . . . the Commission err[s] in attributing any weight to it." Clinchfield Coal Co. v. Bowman, 229 Va. 249, 252, 329 S.E.2d 15, 16 (1985).
In denying compensation to Gainer, the commission found that the employer provided suitable light work to Gainer, which he was able to perform. Hunter's testimony supports this finding. Moreover, the evidence viewed in the light most favorable to the employer proved that Gainer burned a hole in a tube while welding and then attempted to hide it by plugging the hole. Hunter's testimony also supports this finding. Furthermore, Gainer admitted that plugging a hole was a well-known and serious violation of the boiler code specifications. Based upon this record, we cannot say that the commission erred in finding that Gainer was terminated for cause from light duty work procured for him by the employer. That termination precluded him from receiving any further compensation.
"In Marval Poultry Co. v. Johnson, 224 Va. 597, 299 S.E.2d 343 (1983), the Supreme Court held that an employee discharged for dishonesty while on selective employment offered by the employer forfeits his right to compensation benefits." Chesapeake Potomac Telephone Co. v. Murphy, 12 Va. App. 633, 637, 406 S.E.2d 190, 191-92, aff'd en banc, 13 Va. App. 304, 411 S.E.2d 444 (1991). "[W]here a disabled employee is terminated for cause from selective employment procured or offered by his employer, any subsequent wage loss is properly attributable to his wrongful act rather than his disability. The employee is responsible for that loss and not the employer." Id. at 639-40, 406 S.E.2d at 193.
Our holding in Timbrook v. O'Sullivan Corp., ___ Va. App. ___ 439 S.E.2d 873 (1994), does not control this case. InTimbrook, the employee was terminated for refusing to report for selective employment after her doctor released her to return to light work. We specifically found that if an employee's failure to report for selective employment is "related to her dispute over entitlement to compensation benefits," it is not a discharge for cause unrelated to an injured employee's disability. Id. at ___, 439 S.E.2d at 876. Here, however, Gainer returned to light duty work and was later terminated for burning a hole in a tube while welding and then hiding it from his supervisor by plugging the hole. Gainer's misconduct was unrelated to his claim for benefits and constituted a serious violation of the boiler code specifications; therefore, it was grounds for his discharge for cause.
Finally, the commission did not err in failing to consider Gainer's motion to allow after-discovered evidence. The evidence sought to be introduced included medical reports generated after the hearing and after the record had been closed.
For the reasons stated, we affirm the commission's decision.
Affirmed.