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M & S Auto Parts4/19/2005
issioner Tarr dissented, opining that to the extent Murphy required employer to prove claimant's economic loss was caused by his misconduct, "the economic loss was proven. Had the claimant not chronically violated his employer's attendance policy, he would have continued his employment. Any wage loss suffered was a result of the claimant's termination rather than his injury."
Employer noted this appeal.
II. ANALYSIS
Employer concedes that the question presented in this case--the impact of Code § 65.2-510 on an injured employee who is terminated for cause while working in his pre-injury employment and subsequently becomes partially disabled--is one of first impression. It urges us to apply our holding in Murphy, 12 Va. App. 633, 406 S.E.2d 190, to conclude that "an employee terminated for justified cause while on full unrestricted duty after a compensable accident should be treated differently from one who is on restricted duty" and should be forever barred from receiving disability compensation during subsequent periods of temporary disability. Claimant, on the other hand, contends that Code § 65.2-510 applies only to cases in which an employee is working in a light-duty position at the time of termination and is irrelevant under the facts of this case. We agree with claimant that Code § 65.2-510 does not apply under the facts of this case.
Present Code § 65.2-510(A) provides as follows:
If an injured employee refuses employment procured for him suitable to his capacity, he shall only be entitled to the benefits provided for in §§ 65.2-503 and 65.2-603, excluding vocational rehabilitation services provided for in subdivision A 3 of § 65.2-603, during the continuance of such refusal, unless in the opinion of the Commission such refusal was justified.
Interpreting an earlier version of this statute, Code § 65.1-63, that contained substantially similar language, the Supreme Court held that the statute applies only to the refusal of selective employment the employer procures for the employee and does not apply where the employee has been terminated for cause from selective employment he procured for himself. See, e.g., American Steel Placing Co. v. Adams, 230 Va. 189, 335 S.E.2d 270 (1985) (holding that termination for cause from employment procured by employee does not constitute unjustified refusal of selective employment barring benefits under statute).
In Murphy, we considered whether Code § 65.1-63 permitted an employee terminated for cause from selective employment procured by the employer to cure the unjustified refusal of selective employment. 12 Va. App. at 635, 406 S.E.2d at 191. Murphy involved a claimant who was terminated for cause while working in a light-duty position for his pre-injury employer. Id. at 635, 406 S.E.2d at 190. Murphy subsequently procured a light-duty position with a different employer in which he earned less than his pre-injury wage, and he sought temporary partial disability benefits based on the wage differential. Id. at 635, 406 S.E.2d at 191.
We noted the commission and the courts have consistently interpreted this code section to permit an employee to "cure" his unjustified refusal of selective employment by accepting such employment. The premise is that an employer is liable for the condition of the employee resulting from an industrial accident and the employer may reduce its monetary liability by procuring employment suitable to the employee's capacity. In turn, the employee is required to accept such employment procured by the employer or suffer the wage loss during the period of an unjustified refusal. Thus, once an employee accepts selective employment, that employee is e
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