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M & S Auto Parts4/19/2005
permanent forfeiture of compensation benefits," Eppling v. Schultz Dining Pgms., 18 Va. App. 125, 128-29, 442 S.E.2d 219, 221 (1994), the behavior justifying the termination constitutes a "refus[al of] employment procured for him suitable to his capacity," a refusal that, pursuant to Murphy, cannot be cured.
However, where an injured employee returns to his pre-injury employment without restrictions and, while working full-duty, is terminated for "'cause' . . . of the type that [may, under appropriate circumstances,] warrant permanent forfeiture of compensation benefits," id., the terms of Code § 65.2-510(A) expressly do not apply. In order for Code § 65.2-510(A), as interpreted in Murphy, to apply, the job the employee refuses must be a suitable light-duty position procured for the employee by the employer. American Furniture Co. v. Doane, 230 Va. 39, 42-43, 334 S.E.2d 548, 550 (1985) (noting statute applies to refusal of "selective employment," employment "within the employee's residual capacity" (emphases added)). When an employee returns to his full pre-injury employment after an injury, the position is neither a light-duty position nor a position procured by the employer. See Baker v. La. Pac. Corp., 853 P.2d 544, 547 (Idaho 1993) (holding similar statute referring to "partially disabled" employee did not apply because employee had returned to work "without any limitations" and "was not a partially disabled employee when he lost his job"). To hold that an injured employee's termination for cause from post-injury, full-duty employment forever bars the employee from receiving disability benefits during subsequent periods of partial disability is an exceedingly harsh result not required by the language of the Workers' Compensation Act and might result in a windfall to employer.
We need not decide whether Code § 65.2-510 permits an employer to establish a constructive refusal of selective employment by showing that, but for a claimant's earlier termination for cause while working full duty, it would have had suitable selective employment available for the claimant when he later became partially disabled. As set out above, an employer seeking to invoke the bar of Code § 65.2-510(A) bears the burden of establishing that it offered to the injured employee "employment . . . suitable to his capacity." Here, employer did not allege that it would have had available to claimant, but for his termination for cause, "employment . . . suitable to his capacity." A majority of the commission found the record contained no evidence that suitable light-duty work would have been available but for claimant's misconduct, and the record supports that finding.
Thus, Code § 65.2-510 does not bar claimant's receipt of temporary disability benefits from April 23, 2003, and continuing.
III.
For these reasons, we hold 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. Thus, we affirm the ruling of the commission under the facts of this case.
Affirmed.
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