VIRGINIA by maclaren1


									VIRGINIA:                                                                         11/23/2009

                                                                            Opinion by DUDLEY
v.                    VWC File No. 228-11-19


M. Thomas McWeeny, Esquire
Koontz, McKenney, Johnson, DePaolis and Lightfoot, L.L.P.
for the Claimant.
(Priority Mail)

Bryan M. Kirchner, Esquire
Midkiff, Muncie and Ross, P.C.
for the Defendants.
(Priority Mail)

     REVIEW on the record by Commissioner Diamond, Commissioner Dudley, and
Commissioner Williams at Richmond, Virginia.

       This case is before the Commission on remand from the Virginia Court of Appeals. In a

published Opinion dated February 10, 2009, the Court of Appeals reversed our March 17, 2008,

Opinion. In that decision, the Commission reversed the Deputy Commissioner‟s finding that the

claimant‟s termination for cause from full-duty employment barred her claim for temporary

partial disability benefits. The Court reversed our Opinion awarding temporary partial disability

benefits and remanded the case for consideration of the remaining issues.

       In its Opinion, the Virginia Court of Appeals explained:

              We hold, therefore, that, to establish a constructive refusal of
              selective employment under Code § 65.2-510(A) in this case,
              employer could prove that the wage loss at issue was properly
                                                                         VWC File No. 228-11-19

               attributable to claimant by showing that, but for claimant‟s earlier
               termination for cause from post-injury, full-duty employment, it
               would have had selective employment available for claimant
               during the post-termination period of her partial disability. As
               previously mentioned, the commission found that „employer
               testified it „would have‟ offered . . . claimant appropriate light[-]
               duty employment but for her termination for cause‟ and that such
               testimony was uncontradicted and credible. However, having
               erroneously decided that employer failed to establish a constructive
               refusal of selective employment under Code § 65.2-510(A)
               because it did not make „an actual bona fide job offer‟ of selective
               employment to claimant, the commission did not fully resolve the
               question whether claimant was terminated for cause. Indeed, the
               commission solely found that claimant‟s termination „may‟ have
               been for cause. Likewise, the commission left unresolved
               claimant‟s objection to the timing of employer‟s assertion of its
               termination for cause defense. Accordingly, the commission will
               need to resolve these matters on remand.

       On remand, we must first consider the claimant‟s objection to the timing of the

employer‟s assertion of its “termination for cause” defense. Next, we must determine whether

she was terminated for justified cause. If we find that the claimant was terminated for justified

cause, we must determine whether the employer would have offered her light-duty work within

her residual capacity, but for her termination for cause.

       On August 17, 2005, the claimant, a salesperson for the employer‟s vehicle dealership,

sustained abrasions to her arms and knees. She also suffered back and hip problems as a

compensable consequence of her work injury.          On September 18, 2005, the claimant was

released to full duty, and worked until her termination on November 29, 2005. She has been

partially disabled since June 1, 2006. Because of the finding in our earlier Opinion, we did not

address the claimant‟s objection to the defense of termination for cause, based on insufficient

notice prior to the May 22, 2007, Hearing.

                                                                        VWC File No. 228-11-19

       The claimant sent the employer Interrogatories and Requests for the Production of

Documents on November 24, 2006.          On December 27, 2006, the employer responded to

Interrogatory No. 14, which asked it to identify grounds for defense and reserved the right to

supplement its answers. The employer notified the claimant on May 18, 2007, of its intent to

raise the defense that she was terminated for cause. In her position statement, the claimant stated

that she did not receive this supplement to discovery until 5:21 p.m. on Friday, May 18, 2007,

and that:

               It should be noted that upon review of the documents produced
               pursuant to the supplemental responses, it appears the employer/
               insurer gave adequate notice of employment records to be relied
               upon in their „Termination for Cause‟ defense. (Claimant‟s
               Position Statement at 2)

The claimant argues that, if the employer had provided adequate notice of the defense, she would

have subpoenaed her employment file, her Equal Employment Opportunity Commission

complaint, and the settlement documents, and would have conducted depositions of employees.

       It is well-settled that it is within the discretionary authority of the Deputy Commissioner

to resolve discovery disputes.      In Harris v. Anteon Corp., VWC File No. 215-07-55

(November 15, 2004), we acknowledged that:            “In responding to discovery issues, a

Deputy Commissioner has substantial discretion and we will not disturb a decision on such

issues unless plainly wrong and prejudicial.”       See also Monge v. Community Landscape

Services, VWC File No. 221-66-68 (November 4, 2005); Berry v. Bavarian Chef, Inc.,

VWC File No. 217-72-11 (March 22, 2005).

                                                                         VWC File No. 228-11-19

       Here, the claimant admits that the employer provided her with the pertinent employment

records well before the Hearing in this matter. The employer alerted the claimant to this defense

before the Hearing, and she has not shown that she was prejudiced by this ruling. She testified

concerning the events leading to her termination, and her counsel cross-examined Robert Houck,

general manager, regarding the reasons for her termination.

       We next address the claimant‟s termination. The employer submitted detailed records

documenting her misconduct and her supervisor‟s warnings. On June 7, 2005, Glenn Murphy,

sales manager, met with the claimant to discuss her lack of sales. She offered to quit at that time,

but Murphy decided to give her 30 days to improve her sales. On June 13, 2005, the claimant

came to work late, and therefore, missed a house deal. Murphy noted on June 15, 2005, that she

stayed in her office, and failed to wait on people on the sales floor or on the lot.            On

June 16, 2005, he noted that the claimant did not wait on any customers and was playing solitaire

on her computer.     Murphy found her sleeping in her office chair on June 21, 2005, and

apparently, other salespeople had told him and Houck that she had been sleeping in her office on

several occasions. On July 7, 2005, he gave the claimant another 30-day probation, and noted

that she had sold eight vehicles that month, which was lower than any other salesperson. She

spent too much time sitting in her office and playing on her computer. The claimant also wore

inappropriate clothing.   On July 12, 2005, she was found sleeping in her office, and on

July 30, 2005, she was rude to a customer. Murphy witnessed the claimant yelling at a customer,

who provided examples of her unhelpfulness. On August 8, 2005, he found her sleeping in her

chair. Customers told Murphy that they were very unhappy with the claimant‟s service on

                                                                        VWC File No. 228-11-19

August 23, 2005. On September 2, 2005, he spoke with another customer, who reported that she

did not return his phone calls or provide the missing headphones for his vehicle. The claimant

was found asleep in the showroom on September 3, 2005. On September 16, 2005, she misled

customers regarding the interior of a vehicle. In October 2005, the claimant caused problems

with prizes from a high-gross sales program. In October and November 2005, she continued to

spend too much time in her office and was found sleeping. The claimant came to work late on

several occasions, and was noted as not putting enough effort into selling vehicles and failing to

greet customers on the lot.

       Houck testified that he terminated the claimant on November 29, 2005, for sleeping in

her office, playing computer games at inappropriate times, being rude to customers, failing to

receive customers as they came onto the lot, and failing to reach her sales goals. He stated that

she did not tell him about her light-duty restrictions, and if she had, he would have offered her

employment within those restrictions.

       In summary, the employment records submitted by the employer, as well as Houck‟s

testimony, show a pattern of misconduct by the claimant, adequate warnings and discipline by

her supervisor, with two periods of probation to give her an opportunity to improve, and further

warnings. She was found sleeping in her office and playing computer games, she failed to greet

customers on the sales floor or on the lot, and she was rude to customers. We find that the

claimant‟s misconduct, despite numerous warnings and opportunities to improve, justified her

termination. We also find that she was terminated from full-duty employment for performance

issues, which constituted a Murphy cause justifying termination of her wage loss benefits.

                                                                            VWC File No. 228-11-19

       Next, we consider whether the claimant is entitled to wage loss benefits for her temporary

partial disability beginning June 1, 2006. In its February 10, 2009, Opinion, the Virginia Court

of Appeals stated:

                We hold, therefore, that, to establish a constructive refusal of
                selective employment under Code § 65.2-510(A) in this case,
                employer could prove that the wage loss at issue was properly
                attributable to claimant by showing that, but for claimant‟s earlier
                termination for cause from post-injury, full-duty employment, it
                would have had selective employment available for claimant
                during the post-termination period of her partial disability.

In this case, Houck testified that he would have accommodated the claimant‟s restrictions if she

had not been terminated for cause. This testimony was credible and uncontradicted. We find

that, but for the claimant‟s termination for cause from her full-duty employment, the employer

would have offered her light-duty work within her residual capacity. Therefore, she is not

entitled to an award of disability benefits during her period of partial disability.

       Accordingly, the Deputy Commissioner‟s Opinion is AFFIRMED.

       The claimant‟s letter claim filed on August 13, 2009, is referred to our Customer Assistance

Department for processing.

       This matter is hereby removed from the Review docket.


       I respectfully dissent from the Majority‟s finding that this claimant should be sanctioned

with the permanent forfeiture of workers‟ compensation benefits due to her alleged poor car


                                                                           VWC File No. 228-11-19

          The record the employer uses to prove the “justified cause” does not pass judicial

scrutiny. Much of it is innuendo passed on by clearly hostile co-workers. The pettiness takes on

the air of a soap opera. The following example shows that the claimant was the top salesperson

two months in a row, but she got caught in a personal vendetta. Her supervisor, Glenn Murphy


          [The claimant] had won a high gross for the month prize for the month of June.
          The prize was a handbag from the Bahamas filled with several items that Donna
          and I bought when there on a business tip. We bought all the items from different
          shops throughout the resort. [The claimant] then told several people that I
          received those items from VADA and “regifted” those items to give her as the gift
          for June. I was not aware of this until now. She has sold this month a $3,700 deal
          and was talking with Kendra and Bob a few nights ago about the deal. There was
          mention of [the claimant] possibly winning the high gross prize again which we
          give each month. She commented to Bob that she was not interested in winning it
          again if the gift was another regift as the one from June. Bob asked me about this
          to which I was perplexed that she would think such a thing. I told Bob where I got
          the gifts and reminded him that I bought receipts back for those items. When I
          asked [the claimant] about this in the meeting, she at first denied anything but
          giving her a second chance, she confessed that she had said these things. I asked
          why? She said that the items were obviously the VADA welcome gifts that I got
          in the Bahamas. Also that she showed them to a friend who verified that. I then
          proceeded to tell her that they were not. I then told her how they were purchased
          and that I absolutely did not appreciate her telling people such a story. I told her
          that if she had a problem with me that she needed to bring it to me in the future. I
          said she was never to go just telling stories around the dealership without facts. I
          told her she insulted my integrity as well as Donna‟s. After all Donna picked out
          most of the gifts. She showed no remorse and didn‟t care what I said. I said fine
          that we would no longer have the high gross program at this time.

          It is regrettable that Mr. Murphy‟s feelings were hurt, and I do not condone the

claimant‟s ingratitude for gifts given to her by Mr. Murphy to reward her for what apparently

were two months in a row of top salesmanship. However, I do not agree that this should have

anything to do with entitlement to workers‟ compensation.

                                                                         VWC File No. 228-11-19

        The claimant, age 70, filed an Equal Employment Opportunity complaint against this

employer alleging gender and age discrimination as well as harassment. The case was settled.

One component of the settlement agreement is a gag order on the claimant.

        The Majority found that the employer was “credible and uncontradicted” in its testimony

that it would have rehired the claimant after her recurrent disability. I do not agree, particularly

in light of this alleged history of discrimination.

        I do not believe that this Commission is the proper forum to adjudicate this employment

dispute and termination. The Commission has not articulated a standard of proof to establish the

employee‟s misconduct, or defined whose burden it is. The standard should not be to accept at

face value whatever the employer asserts.

        Moreover, it is unclear under what degree of guilt this employee is being judged;

“justified cause” has become a Kafkaesque concept that has migrated in the case law from

attempted murder to forgetting to clock out of work, from “egregious” misbehavior to any

“voluntary” act. This is a denial of due process.

        Many of the allegations involve what the claimant “supposedly” did according to gossip

of co-workers. The Commission should not expend its time assessing gossip and spite, nor does

the statute require this.

        The claimant testified that “others did the same things” she did but they were not

disciplined. She said co-workers prevented her from approaching customers because they wanted

the sale. She stated that she only slept in her office during lunch, and that others did the same

thing. She denied that she played solitaire. She stated after her injury she could not get into

                                                                      VWC File No. 228-11-19

trucks. She was not able to address whether gender or age played a role in alleged disparate

treatment. Thus, the employer‟s case is not “uncontradicted.”

       The Commission generally conducts 30-minute hearings to determine compensability,

causation and disability issues. To casually bar workers‟ compensation benefits based on such

one-sided evidence and personal animosity is not consistent with the Act‟s purpose. We cannot

fairly adjudicate the existence or seriousness of her employment failings without examining the

discrimination claims. To what extent was the claimant‟s age or gender significant in meting out

punishment? Did other employees also sleep during lunch? Were male workers who came in to

work late discharged? Did younger workers with worse sales records keep their jobs? Should the

Commission endorse the personal grudges of co-workers and supervisors who were offended

because they bought nice gifts in the Bahamas to give the claimant for her outstanding

performance, and she insulted the gifts to a co-worker? Can the Commission fairly adjudicate

this issue without access to the evidence presented in the EEOC proceedings? Is this the

Commission‟s business in the first place?       The Commission has evolved a sophisticated

jurisprudence to address issues related to the Act.      I question our expertise in dissecting

labor/management relations. In fact, prior case law specifically excludes the Commission from

considering personnel disputes.    Such disputes generally involve grievance procedures and

contractual remedies which are beyond the jurisdiction of the Commission.

       In my view the Commission should apply the plain language of the statute, rather than

attempting to primitively navigate the conflicting and inconsistent case law of the Murphy


                                                                        VWC File No. 228-11-19

       Based on the Court of Appeals holding here, the claimant‟s termination would be treated

as a constructive refusal of selective employment. The claimant has found a light duty job within

her restrictions, earning post-injury wages of $114.67.         The employer is liable for a

compensation rate of $192.15 if the claimant cured her constructive refusal of selective

employment by finding an appropriate light duty job.

       The Act clearly addresses this situation. The Act states that when a disabled worker is

terminated or quits light duty employment procured by the employer, this is termed an

“unjustified refusal” of employment. Virginia Code § 65.2-510 establishes the following

consequences for such a termination or refusal:

               A. 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.

               B. If an injured employee cures his unjustified refusal by accepting
       employment suitable to his capacity at a wage less than that originally offered, the
       employer shall pay or cause to be paid to the injured employee during his partial
       incapacity pursuant to § 65.2-502, a weekly compensation equal to 66 2/3 percent
       of the difference between his average weekly wages before his injury and the
       average weekly wage the employee would have earned by accepting the original
       proffered light duty employment.

               C. A cure of unjustified refusal pursuant to subsection A may not be
       established if the unjustified refusal lasts more than six months from the last day
       for which compensation was paid before suspension pursuant to this section;
       however, the six-month period may be extended by the number of days a claimant
       is totally disabled if the disability commenced during such six-month period.
       When an injured employee is precluded from accepting employment as a result of
       pregnancy, the six-month period for curing the refusal may be tolled during such
       period as a physician certifies medical disability.

                                                                          VWC File No. 228-11-19

       The statute calls for suspension of benefits during this “refusal.” In 1995 the legislature

amended Code § 65.2-510(C), reducing the amount of time a partially disabled worker has to

effectuate a cure from two years to six months. It also clarified that benefits would be based on

pay at the refused job in cases where the injured worker finds a lower paying light duty job.

       The restriction in § 65.2-510(B) did not exist when C & P Telephone Company v.

Murphy, 12 Va. App. 633, 406 S.E.2d 190 (1991), aff’d en banc, 13 Va. App. 304, 411 S.E.2d

444 (1991) was decided. This amendment calls into question the underlying rationale for

Murphy. The rationale for Murphy was to avoid placing a disabled worker fired for cause from

suitable light duty employment “in a better position than an uninjured employee who is

terminated for cause and by his wrongful act suffers a loss of income.”

       In Murphy, the injured worker was working light duty at his full salary when he was fired

for fraud. When the worker found another light duty job for less than his full salary, the court did

not believe it was right to require the employer to pay benefits it would not have had to pay if the

employee had not engaged in fraud and misconduct.

       Under § 65.2-510(B), the Murphy claimant would not be eligible for benefits. See

Dowden v. Hercules, Inc., 51 Va. App. 185, 193, 655 S.E.2d 755, 759 n. 4 (2008) (“[A]n

employer that offers an injured employee selective employment at a wage equal to or greater

than the employee‟s pre-injury wages would have no liability under the partial cure provisions of

Code 65.2-510(B)”).

       Although the Code now restricts benefits to injured workers who refuse light duty, the

Murphy progeny continue to favor additional punishment of disabled workers who lose their

                                                                          VWC File No. 228-11-19

jobs.   It is unclear what conduct by a disabled worker merits this forfeiture of workers‟

compensation benefits, and it is unclear what the rationale is for drawing that line.

        Murphy involved an employee guilty of fraud. It was in 1994 in the Eppling case that the

court coined the phrase “justified cause.” In Eppling, the disabled worker was fired for excessive

absenteeism unrelated to the work-related injury. The court held that her conduct was not “of

such a nature” as to warrant the forfeiture punishment. She was allowed to cure her “unjustified

refusal” through good faith marketing.

        The meaning of the concept of a “justified cause” termination is problematical for in the

highly developed field of labor and employment case law concerning terminations, this phrase

does not exist.

        Initially, it appeared that the court used “justified cause” as interchangeable with willful

misconduct. Murphy involved fraud. In Richfood, Inc. v. Williams, 20 Va. App. 404, 457 S.E.2d

417 (1995), the disabled worker was guilty of illegal drug use based on a drug screening. There

is some logic to utilizing the concept of willful misconduct since that exists in the Act as a bar to

receiving initial benefits.

        However, the waters were muddied in 1997 in Walter Reed Convalescent Center/

Virginia Health Servs. v. Reese, 24 Va. App. 328, 482 S.E.2d 92 (1997), when the disabled

worker was fired, not for willful misconduct, but for incompetence. The court did not use the

term “justified cause,” but rather “wrongful acts” based on her unintentional failure to follow

rules. It is difficult to reconcile the fact that negligence is not a bar to receipt of workers‟

compensation benefits, yet negligence can later result in a permanent forfeiture of those benefits.

                                                                        VWC File No. 228-11-19

       It appeared that Reese was an aberration because the court returned to its previous line of

reasoning in Food Lion, Inc. v. Newsome, 30 Va. App. 21, 515 S.E.2d 317 (1999). In Newsome,

the disabled worker was fired for incompetence and inability to follow company rules, but the

court held that the misconduct was not egregious and willful. Therefore, the disabled worker was

permitted to cure his “unjustified refusal.”

       Egregious conduct was present in Artis v. Ottenberg's Bakers, Inc., 45 Va. App. 72, 608

S.E.2d 512 (2005). The disabled worker in that case was fired for staging a robbery at the

workplace and attempted murder. This misconduct merited permanent forfeiture in the court‟s

view. Because the employee defended that his misconduct stemmed from psychological

problems caused by the compensable injury, the court injected the concept that the actions were

“voluntary” and therefore deserved punishment.

       While the court‟s use of “voluntariness” was appropriate in the Artis case, it does not

apply to other fact situations. Nonetheless, this language has crept into later cases, causing

confusion and inconsistency.

       The Act is intended to be balanced. Injured workers do not have the right to remedies in

civil court that would make them whole. Instead, they are restricted to a limited set of benefits.

The disabled worker who loses his or her job is not “better off” than a non-disabled worker,

because the disabled worker faces a potential lifetime inability to perform the job he or she was

trained and equipped to do, and a potential lifetime of reduced earnings. Even without forfeiture,

maximum benefits are limited to 500 weeks. A worker who loses a hand or foot suffers this loss

of earning capacity for a lifetime. When a plant closes, a disabled light duty worker does not

                                                                          VWC File No. 228-11-19

forfeit temporary partial benefits, nor is that person “better off” than able bodied laid off workers

who do not receive benefits.

       Although the claimant is losing a potential 500 weeks of disability benefits, I fail to see

what the prejudice would be to the employer if this non-statutory punitive forfeiture were not

imposed. If the claimant worked for this employer at reduced wages, the employer would pay

2/3 of the difference. If the claimant worked for a different employer at reduced wages, the

employer would pay for 2/3 of the difference. This punishment of the claimant represents a

dramatic unbalancing of the Act. See Timbrook v. O‟Sullivan Corp., 17 Va. App. 594, 439

S.E.2d 873 (1994) (partially disabled worker who refuses selective employment offered by

employer may cure that refusal; she did not permanently forfeit her benefits).

       In light of the confusion in the case law, I would defer to the statute‟s handling of the

issue of terminations from light duty employment. The statute fully protects the employer

because benefits are limited in cases of unjustified refusals or “cause” terminations to what

would have been paid in the light duty job.

       I do not believe that the legislature or the courts intended to transform this Commission

into a labor court to adjudicate terminations.

       I also do not think it is appropriate in a remedial statute to create incentives for employers

to dismiss individuals who have incurred workers‟ compensation injuries. The moral hazard of

pretextual or discriminatory discharges is enormous. This Commission is not the proper forum

to assess potential discriminatory discharges, nor does the statute envision this role. The statute

                                                                         VWC File No. 228-11-19

establishes the Commission‟s role under § 65.2-510 as determining whether a worker is

medically capable of performing a job.


        This Opinion shall be final unless appealed to the Virginia Court of Appeals within 30 days

of receipt.

cc:     Barbara Jean Smith Plauger, Claimant
        Shenandoah Motors, Inc., Employer
        VADA Group Self-Insurance Association/PMA Management Corporation, Insurer


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