The Court of Appeals of Virginia ruled February 10, 2009 in the case of Shenandoah Motors, Inc. v. Barbara J. Smith that when an injured worker is terminated for cause from a full duty job, they cannot come back later and seek partial disability compensation.
The case applies a “termination for cause” defense which forever bars partial wage loss benefits if an injured worker under an award is terminated for cause from a full duty position and later becomes partially disabled. The rule in this new case states that the employer need only establish by testimony that they “could” have been able to offer selective duty employment “but for” the prior termination. Notwithstanding the fact that EVERY employer “can” create a selective duty position to accommodate any and all restrictions. At the oral argument by claimant’s counsel, he explained that he had a client who was offered a selective duty position which had him sit in a trailer and watch the same 3 safety videos over and over for three weeks !
This is another reason why the trial team at ABRAMS LANDAU reminds clients that it is important to keep your eyes and ears open for light duty work and to make sure your treating doctors’ instructions and limitations are clearly spelled out and in writing. Stay tuned for more developments on this case and case law.