Virginia: Claimant Awarded Post-Termination PD Benefits; Her Poor Performance Was In Part Tied to Her Compensable Injuries

As noted by Larson’s Workers’ Compensation Law, § 84.02 et seq., some of the most complex disability questions arise when the claimant returns to some kind of employment after the injury and later becomes unemployed. The subsequent unemployment may be a combination of the physical disadvantage, general economic conditions, the operation of union seniority rules, and perhaps other factors, such as discharge for poor performance or misconduct. Alternatively, the subsequent unemployment can be caused by claimant’s voluntary quitting the job.

The general rule is that if the record shows no more than that the employee, having resumed regular employment after the injury, was fired for misconduct, it will not support a finding of compensable disability. If the claimant’s poor performance is caused by the original injury, the result is usually different, as shown by a recent memorandum decision by the Court of Appeals in Virginia [Pier 1 Imports v. Wright, 2012 Va. App. LEXIS 177 (May 29, 2012)]. There the appellate court held that because the claimant’s poor performance and subsequent termination was linked to her injury, she could receive continued payments of disability benefits. 


Claimant sustained a compensable work-related injury by accident to her head and the left side of her body when she fell backward onto a concrete floor while attempting to move an armoire at work. She sought temporary total disability. She had worked for the employer for some nine years prior to the accident. During that time, the employer promoted claimant from sales manager to store manager, increased her wages, awarded claimant financial bonuses, and gave her positive feedback on all annual performance reviews.

After her accident in, a neurologist diagnosed claimant with post-traumatic headaches, blurred vision associated with headaches, post-concussion syndrome, transient cerebral ischemia, and post-traumatic neck pain. An orthopedic surgeon treated claimant’s left hip symptoms, including pain and limping, and released claimant to work with restrictions of no lifting over forty-nine pounds, and no bending, stooping, or squatting. Approximately one year after claimant’s accident, a regional manager for employer began periodically inspecting claimant’s store and noted deficiencies. Claimant testified that she believed her medical condition contributed to the difficulty she experienced in understanding the reports and analysis required by employer and in unloading, organizing, and displaying merchandise. Claimant testified that because of her injuries, she “was a little slower at getting all the moves done.”

In July 2009, after months of witnessing “common repeated deficits” in claimant’s store, the regional manager gave claimant a poor performance evaluation. She subsequently testified that she did not know about claimant’s work injury until after she had prepared the evaluation. She testified that claimant did not disagree with the criticisms she leveled in the July 2009 evaluation and that claimant told her that, because of her injuries, she was often forgetful. The regional manager terminated claimant in October 2009 because of “[her] inability to perform her job to a satisfactory level.”

Commission’s Decision

The deputy commissioner found that claimant’s poor performance at work did not justify the permanent forfeiture of disability benefits on her termination, pursuant to Code § 65.2–510(A). The deputy commissioner also found that the medical record unambiguously established that physical limitations due to her left hip injury prevented claimant from performing the physical aspects of her job, including unloading the delivery truck, straightening up the storeroom, and placing merchandise on the store floor. On appeal, the commission found that claimant’s misconduct was involuntary and that “she was [not] responsible for the actions that caused the employer to terminate her.” The commission also found that “[claimant’s] conduct resulted from injuries sustained in her work accident.”

Further Appeal

On further appeal, the Virginia appellate court observed that an employee who was terminated for cause and for reasons not concerning his or her disability was not entitled to receive workers’ compensation benefits. The appellate court agreed with the employer that the burden of proof was on the claimant to demonstrate that her termination was attributable to her disability rather than her wrongful act. Here, however, the commission had made a factual finding that claimant’s conduct was not purely voluntary, but rather was caused “at least in part” by her disability. attributed her wrongful conduct to “injuries sustained in her work accident,” including “memory problems” and “day-long headaches that interfered with her work.” Because the record supported the commission’s determination that claimant’s poor performance at work was attributable to her injury and its residual involuntary effects, and not attributable to “purely voluntary” misconduct, the appellate court affirmed the commission’s award of post-termination partial disability benefits.

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