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WORKERS’ COMP – Worker Misconduct – Benefits Suspension

An employer gets another chance to argue for suspension of workers’ comp benefits, as the Court of Appeals remands the case for the commission to consider whether claimant’s misconduct was voluntary or involuntary.

Employer argues that claimant’s willful preparation and submittal of a fabricated and fraudulent document to employer, coupled with her prior poor work performance are sufficient to show conduct unrelated to her disability that warrants a permanent suspension of benefits. Claimant was on probation for poor performance at the time she slipped and fell on ice outside employer’s office door.

The commission found that claimant’s termination was reasonable, but her conduct was not so egregious that she should forever lose the right to receive compensation benefits.

Under Artis v. Ottenberg’s Bakers Inc., 45 Va. App. 72 (2005), an employee who is terminated for cause and for reasons not concerning his disability is not entitled to receive compensation benefits. In determining whether or not an employee was terminated for cause, it is not necessary to prove the employee’s wrongful act was intentional, willful or deliberate. All that is required is a showing that the wage loss is properly attributable to the wrongful act and that the employee is responsible for that wrongful act.

Based upon the standard of review, we must assume that claimant’s termination was not due to her disability, but rather her poor work performance and attitude.

Employer’s president testified that claimant was placed on probation on Feb. 5, 2007, because, among other things, she did not work as a team member, failed to perform her job duties, and had difficulty prioritizing tasks. The president further testified that claimant failed to comply with company policy following her injury by not informing employer of her expected absence. The commission concluded that claimant’s termination was attributable to her poor job performance and her failure to contact employer regarding her expected absence from work due to her work injury. Because the commission’s conclusion is supported by credible evidence in the record, for the purpose of any analysis under Artis, it is conclusive and binding upon this court.

The commission made no findings and conducted no analysis with respect to the second prong of the Artis test. This was not the correct legal standard for the commission to apply. This was not the correct legal standard for the commission to apply.

Therefore, we remand this case to the commission and direct it to determine whether claimant’s misconduct was voluntary or involuntary and to apply those findings to the correct legal standard as set forth in Artis.

Reversed and remanded.

Chemical Producers and Distributors Ass’n Inc. v. Perry (Humphreys, J.) No. 1716-08-4, June 9, 2009; Workers’ Comp. Comm’n; Benjamin J. Trichilo for appellants; Linda A. Perry, pro se. VLW 009-7-250(UP), 5 pp.

VLW 009-7-250

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