Food Lion, Inc. v. Newsome

• Decision Date: 08 June 1999
• Docket Number: Record No. 1739-98-2.
• Citation: Food Lion, Inc. v. Newsome, 515 S.E.2d 317, 30 Va.App. 21 (Va. App. 1999)
• Parties: FOOD LION, INC. v. Curtis T. NEWSOME.
• Court: Virginia Court of Appeals

515 S.E.2d 317

30 Va. App. 21

FOOD LION, INC. v.Curtis T. NEWSOME.

Record No. 1739-98-2.

Court of Appeals of Virginia, Richmond.

June 8, 1999.

Cathie W. Howard(Tenley A. Carroll-Seli; Pierce & Howard, P.C., on brief), Richmond, for appellant.

Ruth E. Nathanson(Maloney, Huennekens, Parks, Gecker & Parsons, on brief), Richmond, for appellee.

Present: BENTON, COLEMAN and ELDER, JJ.

COLEMAN, Judge.

This appeal from an award of temporary total disability benefits by the Workers' Compensation Commission concerns the effect of an employee's being terminated for cause from selective employment provided by the employer upon the employee's ability to cure the "constructive refusal" of selective employment.First, employer asserts that after a claimant cures an unjustified refusal of employer-provided selective employment, a future justified refusal of the curative employment is, in effect, a continuation of that pre-cure refusal for which the employer should have no liability.Alternatively, the employer asserted at oral argument that because employer provided the employee selective employment, which the employee "constructively refused" by being terminated for cause, the employer's liability for subsequent periods of disability should be limited to the difference between the "constructively refused" selective employment wage and the pre-injury wage.We disagree with both contentions, and we affirm the commission's award of temporary total benefits.

After receiving a compensable low back injury in July 1996 while working for Food Lion, Inc., Curtis T. Newsome received benefits for various periods of temporary total and partial disability.He returned to a light duty job with Food Lion but was terminated for cause in January 1997 for failing to comply with established company rules and receiving six "constructive advice" memos within two years.

Pursuant to company policy, Food Lion would not rehire Newsome.However, Newsome obtained other selective employment at a wage equal to or greater than his Food Lion selective employment wage.Thereafter, Newsome changed jobs several times, each time increasing his wage and thereby proportionately decreasing Food Lion's obligations to pay partial disability benefits.However, in August 1997 Newsome's doctor revised Newsome's employment restrictions to limit his forward bending.In order to comply with his doctor's restrictions, Newsome had to terminate his job.He remained unemployed for seven and one-half weeks, during which time he sought other employment within his medical limitations.

The employer filed an application to terminate or suspend the outstanding temporary partial disability benefits award, and Newsome filed for temporary total benefits.Evidence at the evidentiary hearing proved Newsome sought and found new employment within his work capacity at still a higher salary than his former selective employment.The commission found that Newsome effectively marketed his residual work capacity during this period and awarded him temporary total disability benefits.On appeal, Food Lion argues that although Newsome marketed his residual capacity, he should be denied benefits because he had previously been terminated for cause from the selective employment that Food Lion had provided.

ANALYSIS

An employee who unjustifiably refuses selective employment forfeits his entitlement to wage-loss benefits "during the continuance of such refusal."Code§ 65.2-510.An injured employee terminated for misconduct forfeits his or her wage compensation benefits and is not eligible to cure his or her refusal of selective employment.SeeChesapeake & Potomac Telephone Co. v. Murphy,12 Va.App. 633, 639-40, 406 S.E.2d 190, 193, aff'd en banc,13 Va.App. 304, 411 S.E.2d 444(1991);but seeEppling v. Schultz Dining Programs,18 Va.App. 125, 128-30, 442 S.E.2d 219, 221-22(1994)(finding that a termination "for cause" does not work a forfeiture of claimant's eligibility to cure a constructive refusal of selective employment where claimant's conduct does not rise to the level of misconduct).Here, the commissioner found that because Newsome was not terminated for misconduct as in Murphy,he was eligible to cure the constructive refusal....