COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Elder
Argued at Richmond, Virginia
FOOD LION, INC.
OPINION BY
v. Record No. 1739-98-2 JUDGE SAM W. COLEMAN III
JUNE 8, 1999
CURTIS T. NEWSOME
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Cathie W. Howard (Tenley A. Carroll-Seli;
Pierce & Howard, P.C., on brief), for
appellant.
Ruth E. Nathanson (Maloney, Huennekens,
Parks, Gecker & Parsons, on brief), for
appellee.
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.
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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. See Chesapeake & 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
see Eppling 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
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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. Employer does not appeal that finding.
According to Food Lion, however, although Newsome cured his
refusal of selective employment, Newsome’s seven and one-half
weeks of unemployment were a continuation of his pre-cure refusal
of selective employment. Food Lion argues that were it not for
Newsome’s original termination for cause from Food Lion, he would
not have suffered the period of unemployment at issue. Food Lion
offered evidence that had Newsome stayed with Food Lion, Food
Lion’s established light duty program would have adjusted his
duties to comply with the doctor’s restrictions. Therefore, Food
Lion argues that the seven and one-half weeks of unemployment are,
in effect, an extension of the pre-cure unemployment during which
Newsome was ineligible for wage-loss benefits.
Food Lion’s construction of the Act is inconsistent with the
Act’s plain language. Under Code § 65.2-510, once an employee has
cured an unjustified refusal of selective employment, he or she is
entitled to reinstatement of benefits if the employee reasonably
markets his or her residual capacity. Once an employee cures an
unjustified refusal of employment, Code § 65.2-510 returns the
parties to their pre-refusal status, and Code § 65.2-502 obligates
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the employer to pay partial incapacity benefits. When an employee
has cured an unjustified refusal of selective employment, the Act
creates no ongoing obligation on the employee’s part to establish
that he or she is “still curing the earlier refusal,” other than
the requirement that the employee make reasonable efforts to
market his or her residual capacity. See Code § 65.2-510; Holly
Farms v. Carter, 15 Va. App. 29, 42, 422 S.E.2d 165, 171-72
(1992).
Newsome terminated his curative employment based on medical
restrictions that prevented him from performing his job. Newsome
established that he thereafter reasonably marketed his residual
capacity without success for seven and one-half weeks. Although
Food Lion posits that it was Newsome’s initial termination for
cause from Food Lion that prevented him from working during the
period of unemployment, Newsome cured that unjustified refusal.
Once cured, under Code § 65.2-510, Newsome was entitled to
reinstatement of benefits so long as he reasonably marketed his
residual capacity.
Code § 65.2-510 allows employees to cure an unjustified
refusal of selective employment by obtaining equivalent selective
employment. During the continuance of the refusal, prior to the
cure, Code § 65.2-510 suspends benefits and relieves the
pre-injury employer from any obligation to pay wage-loss benefits.
But, Code § 65.2-510 provides for suspension of benefits only
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during the continued unjustified refusal of selective employment.
Once an employee has cured the unjustified refusal, he or she is
entitled to reinstatement of benefits when the employee is
disabled and reasonably markets his or her residual work capacity.
We decline to adopt a rule as proposed by Food Lion that the
justified refusal of selective employment that had cured prior
unjustified refusal of selective employment provided by the
employer, in effect, constitutes a continuation of the prior
unjustified refusal. Additionally, because Newsome properly cured
his refusal of selective employment, as long as he fully markets
his residual capacity, we find no authority to limit the
employer’s liability to the difference between Newsome’s refused
selective employment wage and his pre-injury wage. Accordingly,
we affirm the commission’s decision.
Affirmed.
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