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M & S Auto Parts4/19/2005
isting." Dr. Kimberly H. Salata began treating claimant on May 27, 2003, on referral from Dr. Silveri, and she agreed with Dr. Silveri's restrictions. Claimant testified at the hearing that his understanding from Dr. Hirsch was that he was "not able to work" between January and April 2003. When Dr. Silveri released him to light duty in April 2003, he began to look for employment. Claimant called Strassner "in the spring" after receiving his light-duty restrictions, and Strassner said "we didn't have any openings." Claimant called again on September 8, 2003, and Strassner again told him there were no openings.
Claimant sought temporary total disability benefits from December 16, 2002, the date he was terminated, and continuing. The deputy commissioner found claimant failed to establish he was disabled before Dr. Salata put him on restricted duty on May 27, 2003. The deputy held that claimant sufficiently marketed his residual capacity after that time but concluded under C & P Telephone Co. v. Murphy, 12 Va. App. 633, 406 S.E.2d 190, aff'd, 13 Va. App. 304, 411 S.E.2d 444 (1991) (en banc), that claimant was not entitled to disability benefits because he was fired for cause in December 2002 and would be entitled to benefits only during periods of temporary total disability.
On claimant's request for review, a majority of the commission awarded claimant temporary total disability benefits from April 23, 2003, the date on which Dr. Silveri first issued work restrictions for claimant. The commission found claimant failed to establish he was partially or totally disabled between his return to work in December 2002 and April 23, 2003, the date on which Dr. Silveri first issued work restrictions. The two members of the majority, Commissioners Diamond and Dudley, did not agree on the reason for awarding benefits from April 23, 2003, and continuing. Commissioner Diamond opined as follows:
When a partially disabled claimant is discharged from selective employment, his temporary total disability benefits may be permanently forfeited if his dismissal was "justified." Chesapeake & Potomac Telephone Co. v. Murphy, 12 Va. App. 633, 406 S.E.2d, aff'd en banc, 13 Va. App. 304, 411 S.E.2d 444 (1991). The employer offered no evidence that light duty work would have been made available to the claimant--after the claimant was placed on light duty in April of 2003--had the claimant not been terminated in December of 2002. Thus, the employer's reasons for terminating the claimant are irrelevant in this proceeding and the claimant was not precluded from obtaining future disability compensation because of his termination from his full duty job on December 16, 2002. See Norman v. Indian Acres Club of Thornburg, Inc., VWC File No. 189-64-52 (September 7, 1999).
Commissioner Dudley concurred, reasoning as follows:
n employee's termination for justified cause while working full duty may be relevant, and would be a cause of his economic loss, where his misconduct effectively removes him from future light-duty employment with the employer that could have otherwise been available. In this case, the claimant contacted the employer on several occasions seeking light duty. He was told that there were no positions available. There is no evidence of record that a suitable light-duty position would have been available, or may have been available, but for the claimant's misconduct.
Under the circumstances, I agree that his misconduct in this case does not prevent him from receiving benefits, because there is no evidence that light duty may have been a viable alternative, if he had left his full-duty work due to partial incapacity, rather than misconduct.
Comm
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