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CAV: Employment agreement controlled care payments

Based on a broadly-worded employment agreement, an employer could unilaterally stop providing care payments for an injured employee based on a doctor’s assessment that the employee no longer needed such care.


While working for Appellee Sonny’s Auto Racing, Appellant Danny Lee Grizzard sustained a serious injury that left him mostly blind and with various neurological issues from traumatic brain injury.

Based on an agreement between the parties, the Commission entered an order in 2009 awarding Grizzard temporary total disability benefits and medical benefits. In 2011, also with the parties’ agreement, the Commission entered another stipulated order providing Grizzard with full-time attendant care, “until conditions justify a change in this care.” At the time, the parties stipulated that Grizzard’s wife would provide that care and Sonny’s would pay $1,680 a week to cover the value of her doing so.

In December 2015, an examining doctor concluded that Grizzard no longer required 24-hour attendant care, noting that his mood and cognition had improved over the past two years. The doctor noted Grizzard’s statement that he was able to navigate his property and immediate surroundings without assistance. Given this opinion, Sonny’s stopped paying attendant-care benefits. Grizzard moved to show cause, alleging that Sonny’s had violated the Commission’ 2011 order.

Upon review, the full Commission held that the language in the 2011 stipulated order did not require Sonny’s to seek prior approval from the Commission before discontinuing payment.

Agreement terms

The 2011 order states the conditions under which attendant care benefits may be modified or terminated: when “conditions justify a change.” It does not specify how an employer could modify or terminate that benefit. The court agrees that the order is silent on how attendant care benefits terminate, but because that silence makes it equally susceptible to multiple interpretations, it is ambiguous.

The court is sympathetic to Grizzard’s position, given the gravity of his injuries and the risk of potential hardship that an unexpected reduction in payments can cause. Nevertheless, this ambiguity could have been avoided. He was party to this agreement and could have insisted upon more detailed language as to how these benefits may be terminated or modified. Such language is not unprecedented, and the need for it was foreseeable — parties in prior cases have included it. But here, the stipulated order stated only that the employer would pay the benefits until conditions justify a change, with no requirement that any change be pursuant to the parties’ agreement or Commission order.

Absent this additional language, the court cannot say the Commission abused its discretion by interpreting its own order to mean the employer did not need to seek Commission approval before terminating those benefits.

The court need not address if a statutory mechanism exists by which the employer could file an application with the Commission to terminate a medical benefit, such as attendant care, as this case turns on the language in the parties’ agreement.


Grizzard v. Sonny’s Auto. Racing Inc., Record No. 0986-17-3, Mar. 13, 2018. CAV (AtLee), from Va. WCC. Monica Taylor Monday for Appellant; Jesse Narron for Appellees. VLW No. 018-7-056, 7 pp.

VLW 018-7-056