By: The Workers' Compensation Team
A workers’ compensation claimant cannot be terminated merely for filing a workers’ compensation claim. However, an employer may terminate a claimant as long as it is not in retaliation for the filing of a workers’ compensation claim but rather based on misconduct that is unrelated to the workers’ compensation claim.
The Virginia Court of Appeals has held that an employee who is terminated for cause and for reasons not concerning his disability is not entitled to receive compensation benefits. Artis v. Ottenberg’s Bakers, Inc., 45 Va. App. 72, 84, 608 S.E.2d. 512, 517 (2005)(en banc). This is because, “any subsequent wage loss is properly attributable to his wrongful act rather than his disability.” Id. In determining whether or not an employee was terminated for cause, “it is not necessary to prove that the employee’s wrongful act was intentional, willful, or deliberate.” Id. Instead, all that is required is a showing: (1) that the wage loss is properly attributable to the wrongful act; and (2) that the employee is responsible for that wrongful act. Id.
The Artis test has two parts:
1. The relationship between the disability and the claimant’s termination. As long as the claimant’s termination is not due to his or her disability, but rather to the wrongful act, the first prong of the Artis test will be satisfied.
2. Whether the claimant was responsible for his or her wrongful act. The crucial determination here is whether the claimant’s misconduct was voluntary or involuntary. If the claimant’s misconduct is voluntary, then a forfeiture of benefits is justified. However, if the claimant’s misconduct was beyond the claimant’s control, any forfeiture of benefits is not justified.
The Commission has established legal standards for an employer to meet in proving that the employee’s wrongful act was intentional, willful, or deliberate, and/or that the employee’s conduct was so egregious as to justify a termination for cause and a forfeiture of compensation benefits. However, recently, in Riverside Behavioral Centers and Trumbull Insurance Company v. Steven Tyrone Teel, the Court of Appeals overturned the Commission’s holding requiring that the employer show that the employee’s wrongful act was intentional, willful, or deliberate in order to justify a termination for cause and a forfeiture of compensation benefits.
The Court reiterated that the employer is only required to show: (1) that the wage loss is properly attributable to the employee’s wrongful act; and, (2) that the employee is responsible for the wrongful act.
In Riverside, the claimant was employed as an LPN and his duties included administering medications pursuant to doctors’ orders. The claimant was injured on February 4, 2013, while assisting in restraining a patient. The claimant was terminated on or about February 8, 2013. The claimant testified he was fired because of documentation of medication that he did not in fact administer to a patient. He agreed that he was provided with rules and policies regarding the administration of medication as part of his new employee orientation. He acknowledged that he received and understood that policy. He also agreed that the employer’s policies provided for a progressive disciplinary system and that he had more than one disciplinary action taken against him.
The employer’s policy provided that a first offense generated a verbal warning; a second offense generated a written warning; and, termination was an option for a third offense. The employer gave the claimant a verbal warning and a written warning for his violations of the medication administration policies prior to his termination. He further agreed that he violated the policy by documenting that he administered medication that he did not give. The claimant also agreed that the disciplinary actions against him were warranted and thus his termination was warranted.
The Deputy Commissioner found that the claimant was not terminated for cause concluding that his poor work performance was not a “wrongful act” under case law. The Full Commission addressed the issue of termination, finding that the termination was not for cause and did not therefore justify a permanent forfeiture of benefits. They concluded that his actions did not constitute a deliberate violation of a company rule and that his actions were not of such a nature or so recurrent as to manifest a willful disregard of the interests, duties, and obligations he owed his employer.
The Court of Appeals noted that the claimant did not contend that his wage loss was not attributable to his wrongful act or that he was not responsible for his wrongful act. Rather, the claimant contended that there was no evidence presented that any patient was endangered or denied necessary care. The Court of Appeals rejected this argument, concluding that the claimant’s termination was for justified cause, as the employer was entitled to an accurate paper trail of medications. The Court held that there was no need for a patient to sustain physical harm in order to establish that the termination was for justified cause.
Other examples of findings of justified terminations have included a claimant’s repetitive harassment of subordinates through angry and abusive language, Montalbano v. Richmond Ford, LLC, 57 Va.App. 235, 701 S.E.2d. 72 (2010); dishonesty, Marvel Poultry Co. v. Johnson, 224 Va. 597, 299 S.E.2d 343 (1983); frequent absences, poor work performance, and attitude, Goodyear Tire & Rubber Co. v. Watson, 219 Va. 830, 252 S.E.2d 310 (1979), failure to pass a drug test upon which employment was conditioned, Richfood, Inc. v. Williams, 20 Va.App. 404, 457 S.E.2d. 417 (1995); sleeping in the office, playing computer games, and being rude to customers, Plauger v. Shenandoah Motors, Inc., Record No. 2805-09-4, 210 Va.App. LEXIS 156 (April 27, 2010).
Adjuster Tips for Successfully Proving Termination for Cause
- Analyze whether the discharge is retaliatory in nature or based on misconduct that is unrelated to the workers’ compensation claim. Analyze whether the employer’s stated reasons for termination are legitimate versus pretextual.
- Confirm that the employer has followed its progressive discipline system precisely and that the workers’ compensation claimant was not given more severe discipline or that disciplinary steps were skipped or omitted. Make sure that the same standards are applied to all workers and that there have been no departures from the employer’s normal practices and policies.
- Determine if the acts in question occurred prior to the work injury and if so, whether such conduct was previously tolerated. If similar behavior was tolerated before the work injury the discharge will most likely be deemed retaliatory.
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