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JULY 10, 2001

Record No. 0495-01-3

Present: Judges Elder, Bray and Senior Judge






(George L. Townsend; Chandler,
Franklin & O’Bryan, on brief), for appellant.

(James A. L. Daniel; Elizabeth
B. Carroll; Daniel, Vaughan, Medley &
Smitherman, P.C., on brief),

for appellee.

Joanne Sifford Glass (claimant) contends that
the Workers’ Compensation Commission erred in finding that she
was not entitled to disability benefits after September 22, 1999
because she had been previously terminated for cause effective
July 12, 1997 from light duty employment procured for her by
Tultex Corporation (employer). 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.

This appeal does not present a
case of conflicting evidence or a dispute
concerning the commission’s findings of fact.
When the issue is the sufficiency of the evidence
and there is no conflict in the evidence, the
issue is purely a question of law. This Court is
not bound by the legal determinations made by the
commission. "[W]e must inquire to determine
if the correct legal conclusion has been

Cibula v. Allied Fibers & Plastics,
14 Va. App. 319, 324, 416 S.E.2d 708, 711 (1992) (citations

In a June 9, 1998 opinion, Deputy Commissioner
Herring held that claimant was discharged from selective
employment because she fought with a co-worker on employer’s
premises while at work, a reason wholly unrelated to her
disability and for which she was responsible. The deputy
commissioner held that claimant was discharged for just cause and
terminated her award of temporary partial disability benefits
effective July 12, 1997. That opinion was not appealed, and
became final.

On March 31, 1999, claimant’s physician again
removed her from work. Employer accepted the period of total
incapacity from that date until September 21, 1999, when claimant
was released to work with restrictions on September 22, 1999.
After September 22, 1999, claimant marketed her residual
capacity. As of September 22, 1999, employer had closed the plant
at which claimant worked and filed for Chapter 11 bankruptcy.

Before the commission and in this appeal,
claimant argues that because employer subsequently closed the
plant where she had worked and filed for bankruptcy, her
termination for justified cause was no longer a contributing
factor to her wage loss because employer no longer had light-duty
available. Claimant argues that employer should be required to
pay her benefits beginning September 22, 1999. She contends that
employer’s filing for bankruptcy and winding up its business was
tantamount to a withdrawal of its constructive offer of selective
employment and that the commission erred in relying upon Eppling
v. Schultz Dining Programs
, 18 Va. App. 125, 422 S.E.2d 219
(1994). We disagree.

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 id. at 130, 442 S.E.2d at

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
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.

Id. Furthermore, an employee cannot cure
a discharge for cause from employer procured selective employment
by obtaining alternative employment on his or her own. See
Chesapeake & Potomac Telephone Co. v. Murphy, 12 Va.
App. 633, 639, 406 S.E.2d 190, 193, aff’d on rehearing en banc,
13 Va. App. 304, 411 S.E.2d 444 (1991). In Murphy, we
reasoned as follows:

[W]here a disabled employee is
terminated for cause from selective employment
procured or offered by [the] employer, any
subsequent wage loss is properly attributable to
his [or her] wrongful act rather than his [or
her] disability. The employee is responsible for
that loss and not the employer. In this context,
we are unable to find any provision within the
Workers’ Compensation Act which evidences an
intent by the legislature to place such an
employee in a better position than an uninjured
employee who is terminated for cause and by his
wrongful act suffers a loss of income.

Id. at 639-40, 406 S.E.2d at 193.

Here, claimant was terminated for just cause.
Therefore, she permanently forfeited her right to future
compensation benefits such as those sought in this case,
regardless of any future circumstances of the employer, so long
as her loss was attributable to her wrongful act and not her
disability. We find no support for claimant’s argument that
because employer closed its plant and filed for bankruptcy after
she was terminated for just cause that she should now be entitled
to a resumption of benefits. Under the circumstances of this
case, employer had no duty to offer claimant light-duty
employment after her termination. As the commission held:

[C]laimant is no longer
employed by the employer, and was not so employed
at the time of the plant closure. It is
undisputed that her employment was previously
terminated for the clearly justifiable reason
that she was fighting on the job. We therefore
conclude that the claimant’s termination for
cause is the proximate cause of her wage loss,
and that the employer’s subsequent bankruptcy and
plant closure are not "intervening
causes" which in any way require
reinstatement of compensation benefits.

For these reasons, we affirm the commission’s




[1] Pursuant to Code
? 17.1-413, this opinion is not designated for publication.