CONSTRUCTIVE REFUSAL

CONSTRUCTIVE REFUSAL OF SELECTIVE EMPLOYMENT

Shenandoah Motors, Inc. v. Smith, 53 Va. App. 375, 672 S.E. 2d 127 (Va. App., 2009).

Claimant sustained a compensable injury to her hip, on August 17, 2005, while working as a car salesman. She returned to full-duty work, without restrictions, on September 8, 2005, until she was fired on November 29, 2005, for poor work habits and failure to meet her monthly sales quota.

On June 1, 2006, Claimant’s treating physician placed her on light-duty restrictions due to problems related to her August 17, 2005 injury. Subsequently, she filed a claim for temporary partial disability benefits from June 1, 2006, and continuing. At no time prior to Claimant’s termination was her employer aware of any work restrictions. Had Claimant been on light-duty restrictions however, her employer testified that there would have been suitable light-duty work for her within those restrictions.

The Deputy Commissioner denied temporary partial disability benefits based on a finding that the Claimant was terminated for cause and, had she not been, would have been offered light-duty work, as the employer testified, and therefore the employer had proved a constructive refusal of selective employment. The Commission reversed however, holding the employer who terminates the claimant while on full-duty cannot claim constructive refusal of selective employment in the future if the claimant is restricted to light duty without an actual bona fide job offer.

The Court of Appeals, in reversing the Commission’s decision awarding claimant temporary partial disability benefits, held that Code §65.2-510(A) permits an employer to establish a constructive refusal of selective employment by showing that, but for the 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.

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