In a decision that has been not been designated for publication, the Court of Appeals of Virginia held that an employee cured his refusal of selective employment (“light work”) where, following a work-related injury, he resigned from his employment rather than accept a written reprimand but, less than one hour later, informed his supervisors that he had reconsidered and would accept being written up [see Power Dist. Prods., Inc. v. Lockard, 2015 Va. App. LEXIS 100 (Mar. 31, 2015)].
The injured employee had been helping another employee assemble transformers. The employer’s chief operating officer noticed a defect in the assembly that could potentially have caused the failure of the $90,000 transformer. A supervisor informed the employees they would be reprimanded for poor workmanship. Rather than accept the reprimand, the injured employee quit. Within an hour, however, before he had left the premises, he changed his mind. The employer’s representative told the employee that it was holding the employee to his resignation. Later the employer contended that the employee’s unjustified resignation precluded any award of further workers’ compensation benefits. The Commission disagreed, finding the injured employee had cured the refusal of selective employment.
On appeal, the Court said the issue was controlled by Thompson v. Hampton Inst., 3 Va. App. 668, 353 S.E.2d 316 (1987). Under that holding, when an employee who previously unjustifiably refused selective employment advises his employer that he is willing to accept such work or work of like kind, the employer must resume the payments for compensable injuries even though the procured selective employment may no longer be available. The Court acknowledged that where an employee on selective employment is discharged for cause and for reasons not related to the disability, the employee forfeits his or her right to compensation benefits. There was no such discharge for cause here. The employer rather had taken the position that the employee resigned.