An Update on “Termination for Cause” in Workers’ Compensation

Written by Nicholas P. Marrone, Esq. Edited by Rachel A. Riordan, Esq. Under the Virginia Workers’ Compensation Act (“the Act”), claimants that have been terminated for justified cause are not entitled to compensation benefits during periods of light duty release regardless of whether or not they market their residual capacity. Prior to 2005 the standard for whether or not a claimant was terminated for cause was based on a Virginia Supreme Court case called Goodyear Tire & Rubber Co. v. Watson, 219 Va. 830, 252 S.E.2d 310 (1979). In that 1979 case the claimant had returned to light duty work offered by the Employer but was then terminated due to poor performance, which had nothing to do with the claimant’s injury. The Court held that a claimant who is terminated for cause unrelated to his work injury while on light duty is not entitled to receive compensation benefits under the Act. This standard is different from how Virginia treats a refusal of light duty employment from an employer. When it comes to a refusal of light duty, a claimant can cure and have compensation benefits reinstated during periods of light duty release by adequately marketing themselves within six (6) months of the refusal. A claimant cannot, however, cure a termination for cause to reinstate compensation benefits during light duty release.   Around the mid-1990s, however, the Commission began to stray from the standard set by the Virginia Court of Appeals in determining whether or not a termination for cause would result in the Claimant being forever barred from compensation benefits during periods of light duty work release. During this...

RIDING HORSES IS AN “INTRINSICALLY DANGEROUS ACTIVITY” UNDER VIRGINIA LAW

Written by Bill Pfund, Esq. Virginia has a series of “Equine Activity” statutes, § 3.2-6200-§ 3.2-6203 that say that a person shall not be liable for an injury to or death of another resulting from the intrinsic dangers of horse riding (“equine activities”), and that no participant shall have any claim against, or recover from, any other person for injury or death of the participant resulting from the intrinsic dangers of equine activities. Intrinsic dangers of equine activities is defined as those dangers or conditions that are an integral part of equine activities, including: (i) the propensity of horses to behave in ways that may result in injury, harm, or death to persons on or around them; (ii) the unpredictability of a horse’s reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals; (iii) certain hazards such as surface and subsurface conditions; (iv) collisions with other animals or objects; and (v) the potential of a participant acting in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the equine or not acting within the participant’s ability. The Virginia statute goes on to say that no participant, or the parent or guardian of a participant, who has knowingly executed a waiver of their rights to sue, or agrees to assume all risks specifically enumerated under the statute, may maintain an action against or recover from an equine activity sponsor or an equine professional for an injury to or the death of a participant engaged in an equine activity. The waiver must give notice to...

Paying For Posts: Is A Company Liable For An Employee’s Social Media Posts?

Written by Jessica Relyea, Esq. Edited by Brian A. Cafritz, Esq. Businesses often check a job applicant’s social media sites prior to making an offer of employment. Some companies encourage employees to post about their job on social media as a marketing device to help sell their products or services. Other companies discourage employees from mentioning them for public relations reasons. But with the ever-growing impact and reach of social media, companies need to start asking whether they can be legally liable for what their employee posts, shares, or tweets on social media. Is a retail store responsible if an associate posts an unflattering picture on Instagram of a customer trying on clothes? Does a restaurant become legally liable if an employee accuses a customer of theft on Facebook? Can a fast-food chain be held responsible if an employee sends out a series of tweets bullying a vendor or coworker? There is little case law specifically discussing social media liability. However, the answers to the question will likely lie in the scope of employment analysis. In Virginia, an employer may be held vicariously liable for the intentional torts (e.g. defamation, intentional infliction of emotional distress) of its employee only if the tort was committed within the scope of the employee’s employment. Tri-State Coach Corp. v. Walsh, 188 Va. 299, 49 S.E.2d 363 (1948); Oberbroeckling v. Lyle, 234 Va. 373, 381 362 S.E.2d 682, 687 (1987). When an employer-employee relationship has been established, the employer has the burden of proving—by a preponderance of the evidence— that the employee was not acting within the scope of his employment when committing the...

$100,000.00 Case Dismissed Because Plaintiff Sued a Dead Man

Judge David Johnson of the Chesterfield County Circuit Court recently dismissed a $100,000.00 lawsuit at the request of KPM Law attorney Bill Pfund, because the plaintiff sued a deceased individual as well as that person’s “Estate”. Although Virginia law allows lawsuits to proceed against an Administrator of a deceased person’s “Estate” (even if the “Estate” has no assets other than insurance which could pay for the plaintiff’s damages), the law requires a Plaintiff to sue an actual living person. In this case, the Plaintiff, Albert Lee, was injured in a car accident with Ray Alexander in April, 2011. Unbeknownst to Lee, Alexander died the following month.   Two years later, Lee filed a lawsuit against Alexander. After learning that Alexander was deceased, Lee withdrew his lawsuit by taking a voluntary “nonsuit”. Lee subsequently refiled the lawsuit against both Alexander and the “Estate of Ray Alexander”. No one was appointed to serve as an Administrator of Alexander’s Estate until August, 2016 when Lee’s attorney arranged for an employee from his law firm to serve as the Administrator.   Judge Johnson found that the lawsuit was a “nullity”, and that the statute of limitations had expired as to any new lawsuit being filed against the actual person serving as the Administrator of Alexander’s Estate. Virginia law states that “[a]ll suits and actions must be prosecuted by and against living parties, in either an individual or representative capacity.  The dead have passed beyond the jurisdiction of the court, and no decree or judgment of the court could be enforced against them personally.  There must be such parties to the record as can...

Commission Signals Support for Possible Suspension of Permanent Total Disability

Written by Chris Wilson, Esq. Edited by Rachel Riordan, Esq. Virginia law provides compensation for “permanent and total incapacity” in catastrophic cases, such as where the employee has sustained a severe brain injury, loss of multiple body parts in the same accident, or injury resulting in total paralysis.[1]  Due to the severity of these injuries, perm total claims are often some of the most expensive and challenging cases faced by employers and claims adjusters in Virginia. On December 22, 2016, the Virginia Workers’ Compensation Commission issued an opinion that appears to support a limited defense against an ongoing permanent and total disability award.  Unlike temporary total disability (TTD) benefits, compensation that is paid for permanent and total incapacity is not subject to a 500-week limit and may continue for the Claimant’s lifetime.[2]  Nevertheless, the Full Commission’s recent opinion in Robert Withers v. W.A. Fisher & Son Inc., Electrical Co., File No. 1825974 (December 22, 2016) suggests that even in cases of permanent and total disability, if the Claimant fails to cooperate with medical treatment the employer may be able to file an application to terminate ongoing compensation. In Withers, the parties agreed the Claimant had sustained a brain injury, and on August 2, 2007 a Stipulated Order was entered in which both sides agreed the Claimant’s brain injury was so severe that it rendered him permanently unemployable.  The Employer paid compensation pursuant to the Award for permanent and total disability beginning October 17, 2006.  On April 4, 2016, the employer filed an Application for Hearing which sought to terminate the outstanding PTD award based on the Claimant’s unjustified refusal...

And the Band Played On: Restaurant not liable for violent acts of patron linked to riotous band it hired

Written by Christopher Bergin, Esq. Edited by  Brian A. Cafritz, Esq. Restaurants that choose to keep its doors open until the early morning hours often face the risk of dealing with unruly, intoxicated patrons. At best, these unruly patrons might become a nuisance for other guests. At worst, they can engage in physical altercations, damaging other property or injuring other patrons. Thus, the question arises, is the restaurant owner liable for injuries caused by its patrons? Fortunately, in Virginia, restaurant owners generally do not have a duty to warn or protect their customers from the criminal acts of others. Indeed, on November 7, 2016, the District Court for the Eastern District of Virginia, recently reinforced this rule in Wyatt v. 90 Grados Rest., Sports Bar & Club LLC. In Wyatt, the plaintiff was shot by another patron in the early morning of January 20, 2014 at 90 Grados Restaurant, Sports Bar & Club LLC, (“90 Grados”) in Manassas, Virginia. At the time of the shooting, 90 Grados had been hosting a party featuring live entertainment from a well known local band. By law, 90 Grados was prohibited from selling or permitting alcohol to be consumed on the premises from 2:00 AM to 6:00 AM. Thus, shortly before 2:00 AM, 90 Grados’s security team began traveling through the establishment, requesting patrons to discard their beverages. One patron, Jeremiah Pullen, “became belligerent” when he was told to throw out his drink. As such, security forcibly escorted Pullen out of the restaurant and into an adjacent parking lot. According to the Plaintiff’s complaint, this adjacent parking lot was dimly lit and had...