COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Haley Argued by teleconference

M & S AUTO PARTS, INC. AND TRAVELERS I NDEMNITY COMPANY OF CT OPINION BY v. Record No. 2314-04-3 JUDGE LARRY G. ELDER APRIL 19, 2005 LEONARD L. PRESGRAVES

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Thomas G. Bell, Jr. (Timberlake, Smith, Thomas & Moses, P.C., on brief), for appellants. A. Thomas Lane, Jr., for appellee.

M & S Auto Parts, Inc., and Travelers Indemnity Company of CT (hereinafter collectively employer) appeal a decision of the Workers’ Co mpensation Commission awarding Leonard L. Presgraves (claimant) temporary tota l disability benefits fo llowing his compensable

industrial accident and back injury of December 5, 2002. 1 Employer contends the commission erroneously concluded claimant’s post-injury termination from full-duty employment, even if that termination was for cause, did not automatica lly bar his subsequent receipt of disability benefits during periods in which he was partially disabled and una ble to find suitable alternative employment. We affirm the ruling of th e commission under the facts of this case.

1 The commission also awarded medical be nefits. Employer does not contest the compensability of the injury itself. Thus, the issue of claimant’s entitlement to medical benefits is not before us in this appeal.- 2 - I.

BACKGROUND Employer operates a NAPA Auto Parts stor e 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 lo cal 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 workin g for employer as the delivery person. The counter person and supervisor was Paul St rassner. Claimant’s job involved making deliveries, stocking shelves, and testing car batteri es. It involved lifting items like car and tractor

batteries and cases of motor oil and tran smission fluid that weighed 40 to 50 pounds. Claimant arrived late to work on a regular basis, and Strassner c ounseled 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 warni ng, explaining that he coul d be terminated if the tardiness continued. Claimant’s tardiness impr oved 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, hu rting his lower back. Later that day, claimant was seen in the Page Memorial Hospital Emergenc y Room. He was released to return to work “in 2 days” with no restrictions.

Claimant was scheduled to work Frida y, December 13, 2002, but did not do so, for reasons not apparent from the record. He wo rked a half-day on Saturday, December 14, 2002.- 3 - Claimant was scheduled to work on Monday, D ecember 16, 2002, at 7:45 a.m. but did not clock

in until 8:31 a.m. After claimant finished hi s 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 Ja nuary 30, 2003. During the week of Christmas 2002, claimant called Strassner and asked for his j ob back. Strassner told claimant the company had no openings. That same week, claimant calle d 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 orthopaedis t, Christopher P. Silveri. On April 23, 2003, Dr. Silveri said claimant could perform “li ght duty at work avoiding heavy lifting over 20 pounds and excessive bending or twis ting.” Dr. Kimberly H. Sala ta began treating claimant on May 27, 2003, on referral from Dr. Silveri, and she agreed with Dr. Silveri’s restrictions.

Claimant testified at the heari ng that his understanding from Dr. Hirsch was that he was “not able to work” between January and April 2003. Wh en Dr. Silveri released him to light duty in April 2003, he began to look for employment. Cl aimant called Strassner “in the spring” after receiving his light-duty re strictions, and Strassner said “we di dn’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 be nefits from December 16, 2002, the date he was terminated, and continuing. The deputy commi ssioner found claimant failed to establish he was disabled before Dr. Salata put him on rest ricted duty on May 27, 2003. The deputy held that claimant sufficiently marketed hi s residual capacity after that time 2 but concluded under C & P

2 Employer did not challenge this findi ng on review, as noted by the commission.- 4 - 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 majo rity 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 commi ssion found claimant failed to establish he was partially or totally disabled between his retu rn to work in December 2002 and April 23, 2003, the

date on which Dr. Silveri first issued work re strictions. The two members of the majority,

Commissioners Diamond and Dudl ey, did not agree on the reason for awarding benefits from April 23, 2003, and continuing. Commi ssioner Diamond opined as follows: When a partially disabled cl aimant is discharged from selective employment, his temporar y total disability benefits may be permanently forfeited if hi s 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 Apr il 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 wa s not precluded from obtaining future disability compensation becau se 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: [A]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 effectivel y removes him from future light-duty employment with th e 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- 5 - 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 receivi ng benefits, because there is no evidence that light duty may have be en a viable alternative, if he had left his full-duty work due to partial incapacity, rather than misconduct. Commissioner Tarr dissented, opini ng that to the extent Murphy required employer to prove claimant’s economic loss was caused by hi s misconduct, “the economic loss was proven. Had the claimant not chronically violated hi s employer’s attendance policy, he would have continued his employment. Any wage loss suffere d was a result of the claimant’s termination rather than his injury.” Employer noted this appeal.

II.

ANALYSIS Employer concedes that the question presen ted in this case--th e 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 disa bled--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 [no] differently from one who is on restricted duty” and should be forever barred from receiving disability compen sation during subsequent periods of temporary disability. 3 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 positi on at the time of termina tion and is irrelevant

3 Employer does not contest the well establishe d principle that an employee terminated for cause remains entitled to compensation during periods of temporary total physical disability caused by the compensable inju ry or condition. See, e.g. , Potomac Edison Co. of Va. v. Cash , 18 Va. App. 629, 631, 446 S.E.2d 155, 156 (1994).- 6 - 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 provide d for in subdivision A 3 of § 65.2-603, during the conti nuance 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, 4 the Supreme Court held that the statute applies only to the refusal of selective employment the employer procures for the empl oyee and does not apply where the employee has been terminated for cause from selective empl oyment 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 procur ed 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 th e 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 pr ocured 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.

4 Former Code § 65.1-63, the predecessor to present Code § 65.2-510, provided that “If an injured employee refuses employment procured for him suitable to his capacity, he shall not be entitled to any compensation at any time during the continuance of such refusal, unless in the opinion of the Industrial Commissi on such refusal is justified.”- 7 - 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 accep ting 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 liabili ty by procuring employment suitable to the employee’s capacit y. In turn, the employee is required to accept such employme nt procured by the employer or suffer the wage loss during the peri od of an unjustified refusal. Thus, once an employee accepts selective employment, that employee is entitled to benefits even though he was previously denied those same benefits. Such an employee is considered as having “cured” his past unjus tified refusal of selective employment. Code § 65.1-63 contains no tim e 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[ing] both his medical condition and his ability to wo rk”) from selective light-duty employment provided by employer barred him from curing his refusal. Id. We noted the Supreme Cour t’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 employ ment 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 se lective 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: [W]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 co ntext, 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- 8 - 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 employ ee unjustifiably refuses to accept or continue selective employment is limited to those cases in which th e 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 reen acted Code § 65.1-63 as Code § 65.2-510 and amended it to recognize the ability of an inju red 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 ba sic purpose of the statut e 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 be nefits if he “refuses employment procured for him suitable to his capacity .” (Emphasis added). Thus, an empl oyer seeking to invoke the bar of Code § 65.2-510 bears the burden of establ ishing that it offered to th e 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 refusa l as affirmative defense bears burden of showing offer of job within employee’s resi dual capacity, at which time burden shifts to employee to show refusal was justified). Wher e 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 ne w employment on the employee’s behalf) and is- 9 - terminated for “‘cause’ . . . of the type that warrants permanent forf eiture 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 co nstitutes 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 return s to his pre-injury employment without restrictions and, while working fu ll-duty, is terminated for “‘cause ’ . . . of the type that [may, under appropriate circumstances,] warrant[] perman ent forfeiture of compen sation 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 st atute 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 pos ition procured by the employer. See Baker v. La. Pac. Corp. , 853 P.2d 544, 547 (Idaho 1993) (holding similar stat ute referring to “partially disabled” employee did not apply because employee had re turned 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-in jury, 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 la nguage 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- 10 - available for the claimant when he later becam e partially disabled. As set out above, an employer seeking to invoke the ba r of Code § 65.2-510(A) bears th e 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-in jury 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 disabl ed and unable to find suitable alternative employment. Thus, we affirm the ruling of the commission under the facts of this

case. Affirmed.