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M & S Auto Parts4/19/2005
Argued by teleconference
OPINION
M & S Auto Parts, Inc., and Travelers Indemnity Company of CT (hereinafter collectively employer) appeal a decision of the Workers' Compensation Commission awarding Leonard L. Presgraves (claimant) temporary total disability benefits following his compensable industrial accident and back injury of December 5, 2002. Employer contends the commission erroneously concluded claimant's post-injury termination from full-duty employment, even if that termination was for cause, did not automatically bar his subsequent receipt of disability benefits during periods in which he was partially disabled and unable to find suitable alternative employment. We affirm the ruling of the commission under the facts of this case.
I. BACKGROUND
Employer operates a NAPA Auto Parts store in Luray, Virginia, selling parts both over-the-counter and by delivery to local auto repair shops. In its typical operation, the store has two employees--a delivery person and a counter person. Sixty percent of employer's business results from its wholesale delivery sales to local repair shops. Because the company has a limited inventory and three local competitors, it is important that parts be delivered to the business' wholesale customers promptly each morning.
On September 16, 2002, claimant began working for employer as the delivery person. The counter person and supervisor was Paul Strassner. Claimant's job involved making deliveries, stocking shelves, and testing car batteries. It involved lifting items like car and tractor batteries and cases of motor oil and transmission fluid that weighed 40 to 50 pounds.
Claimant arrived late to work on a regular basis, and Strassner counseled him verbally about his tardiness, trying to impress upon him the negative impact on the company's ability to be competitive in its service to its customers. On October 14, 2002, appellant was thirty-seven minutes late. Strassner gave him a written warning, explaining that he could be terminated if the tardiness continued. Claimant's tardiness improved initially but then worsened again. By December 2002, claimant "was pretty much back to his old ways."
While at work for employer shortly after 10:00 a.m. on December 5, 2002, claimant slipped and fell on some ice in a parking lot, hurting his lower back. Later that day, claimant was seen in the Page Memorial Hospital Emergency Room. He was released to return to work "in 2 days" with no restrictions.
Claimant was scheduled to work Friday, December 13, 2002, but did not do so, for reasons not apparent from the record. He worked a half-day on Saturday, December 14, 2002.
Claimant was scheduled to work on Monday, December 16, 2002, at 7:45 a.m. but did not clock in until 8:31 a.m. After claimant finished his shift that day, Strassner terminated him based on his tardiness.
Claimant had no work restrictions at the time of his termination on December 16, 2002. After receiving medical treatment for his back injury on December 5 and 6, 2002, claimant did not obtain additional medical treatment until January 30, 2003. During the week of Christmas 2002, claimant called Strassner and asked for his job back. Strassner told claimant the company had no openings. That same week, claimant called the owner of the company and received the same response.
From January 30, 2003, until April 2003, claimant treated with orthopaedist Eric W. Hirsch, who referred him to another orthopaedist, Christopher P. Silveri. On April 23, 2003, Dr. Silveri said claimant could perform "light duty at work avoiding heavy lifting over 20 pounds and excessive bending or tw
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