As a result of the 2009 decision by the Virginia Court of
Appeals in Shenandoah Motors, Inc. v. Smith, 53 Va. App. 375, 672 S.E.2d
127 (2009), the framework for challenging claims to post-termination partial
disability benefits changed significantly. It used to be the case that in
order to bar a claim to post-termination partial disability benefits, the
employer was required to show the following:
(1) that the employer made a bona
fide job offer suitable to the employee’s capacity,
(2) that the employer procured a job
offer for the employee, and
(3) that the employee unjustifiably
refused to accept the job offer.
The court’s ruling in Shenandoah Motors amends the
first requirement to allow an employer to effectively challenge a claim to
post-termination partial disability benefits by showing that the employer would
have made selective employment available during the post-termination period of
the employee’s partial disability but for the employee’s termination for cause
from full-duty employment after suffering a compensable injury.
In other words,
an employer may now bar a claim to post-termination partial disability benefits
by establishing constructive refusal of selective employment by the
employee—i.e., that the employee’s post-injury amounted to refusal of an offer
of selective employment, even in the absence of an actual bona fide offer of
selective employment by the employer.
An employer may establish constructive refusal of selective employment by
showing that it would have offered the employee suitable selective employment
but for the employee’s termination for cause. In Shenandoah Motors,
uncontradicted testimony stating that an offer of light-duty employment would
have been made had the employee not been previously terminated for cause while
working full-duty was sufficient for showing constructive refusal of selective
employment. Still, the court noted that when challenging a claim to
post-termination partial disability benefits based on an employee’s
constructive refusal of selective employment, the employer must persuade the
Virginia Workers’ Compensation Commission with a preponderance of the evidence
that the employee’s actions amounted to constructive refusal of selective
employment, even though the employer never made an actual bona fide offer of
selective employment.
Employers may preemptively bolster their abilities to challenge claims to
post-termination partial disability benefits based on constructive refusal of
selective employment by notifying all employees of the availability of
light-duty employment in the event of an injury, and of the requirements and
protocol for requesting such employment. Employers might additionally remind
all injured employees of the availability of light-duty employment. Such
policies will likely strengthen employers’ claims, when challenging claims to
post-termination partial disability benefits based on an employee’s
constructive refusal of selective employment, that light-duty employment would
have been made available but for the employee’s termination for cause.
