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M & S Auto Parts4/19/2005
ntitled to benefits even though he was previously denied those same benefits. Such an employee is considered as having "cured" his past unjustified refusal of selective employment.
Code § 65.1-63 contains no time limitations within which the employee may cure his refusal.
Id. at 636, 406 S.E.2d at 191. We then proceeded to consider the precise question at issue in Murphy--whether Murphy's termination for cause (for "misrepresent both his medical condition and his ability to work") from selective light-duty employment provided by employer barred him from curing his refusal. Id. We noted the Supreme Court's prior holding that an employee terminated for cause from light-duty employment the employee procured for himself could cure a prior refusal of selective employment offered by the pre-injury employer. Id. at 639, 406 S.E.2d at 193. However, we concluded that an employee was not entitled to cure a prior unjustified refusal of selective employment where the employee has been terminated for cause from selective employment procured by the employer rather than the employee. Id.
We reasoned as follows:
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. 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. We also noted the Supreme Court's recognition that "'[Code § 65.1-63] does not require that employers make selective employment available. But the relief thereby afforded an employer when an employee unjustifiably refuses to accept or continue selective employment is limited to those cases in which the employer has provided or procured such employment.'" Id. at 639, 406 S.E.2d at 193 (quoting Big D Quality Homebuilders v. Hamilton, 228 Va. 378, 381-82, 322 S.E.2d 839, 841 (1984) (citations omitted) (emphasis added)).
The General Assembly subsequently reenacted Code § 65.1-63 as Code § 65.2-510 and amended it to recognize the ability of an injured employee to cure a refusal of selective employment procured for him and to provide a time limit on the period in which an employee may do so. See 1991 Va. Acts, ch. 355; 1995 Va. Acts, ch. 319; 1996 Va. Acts, ch. 252. However, the General Assembly did not alter the basic purpose of the statute or the interpretation given it by our appellate courts.
The express language of Code § 65.2-510(A) provides that an injured employee is not entitled to temporary disability benefits if he "refuses employment procured for him suitable to his capacity." (Emphasis added). Thus, an employer seeking to invoke the bar of Code § 65.2-510 bears the burden of establishing that it offered to the injured employee "employment . . . suitable to his capacity." Id.; see Talley v. Goodwin Bros. Lumber Co., 224 Va. 48, 52, 294 S.E.2d 818, 820 (1982) (holding employer using refusal as affirmative defense bears burden of showing offer of job within employee's residual capacity, at which time burden shifts to employee to show refusal was justified). Where an employee is actually working for employer in a light-duty position "suitable to his capacity" (or in such a position for another employer, where the original employer procured that new employment on the employee's behalf) and is terminated for "'cause' . . . of the type that warrants
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