Montalbano v. Richmond Ford, LLC
57 Va. App. 235
| Va. Ct. App. | 2010Background
- Claimant sustained compensable dual wrist injuries on July 28, 2006, leading to disability awards including a temporary partial award ending November 29, 2007.
- He served ~23 years with the employer, including time as detail shop manager with authority to hire, discipline, and discharge.
- In June 2007, he accepted light-duty work; later promoted to shop manager but without a formal job description or training for that role.
- Employer maintained a written harassment policy; claimant admitted signing it in 2003 and attending a 2008 harassment understanding session.
- Claimant testified managers frequently cursed and belittled employees; supervisor Higgins warned him about anger issues after several incidents.
- Claimant was discharged July 28, 2008 for harassing coworkers; deputy commissioner and full commission found termination for justified cause due to repeated harassment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination for justified cause bars workers' comp benefits | Montalbano argues not justified; disputes conduct and enforcement of policy | Employer argues repeated harassment and warnings justify discharge | Yes; termination for justified cause forfeits workers' compensation benefits |
| Whether claimant reached maximum medical improvement for permanent partial disability | Dr. Blank opined 46% right upper extremity impairment and MMI achieved | IME Dr. Leibovic and conflicting evidence create equipoise on MMI | No clear showing of MMI; evidence in equipoise; no permanent partial disability awarded yet |
| Whether the harassment policy was violated and whether that supports justified discharge | Policy limited to protected classes; conduct was within workplace norms | Policy prohibits harassment generally; multiple oral counsels; termination proper | Harassment and repeated abusive conduct justified termination and benefits forfeiture |
| Whether oral reprimands suffice to support a termination for justified cause | Argues written reprimands not required to sustain justified cause | Cites precedent that supportive reprimands can be oral; not required to have written | Oral reprimands found sufficient; violations persisted, supporting justified cause |
Key Cases Cited
- Artis v. Ottenberg's Bakers, Inc., 45 Va.App. 72 (Va. App. 2005) (forfeiture of benefits when discharge for cause relates to disability context)
- Murphy v. Chesapeake & Potomac Tel. Co., 12 Va.App. 633 (Va. App. 1991) (distinguishes cause vs. justified cause in termination for benefits)
- Kennedy's Piggly Wiggly Stores v. Cooper, 14 Va.App. 701 (Va. App. 1992) (factors for whether abusive language constitutes willful misconduct)
- Food Lion v. Newsome, 30 Va.App. 21 (Va. App. 1999) (reprimands need not be written to sustain disciplinary action)
- Gunst v. Childress, 29 Va.App. 701 (Va. App. 1999) (maximum medical improvement defined as no reasonable expectation of functional recovery)
- Cafaro Construction Co. v. Strother, 15 Va.App. 656 (Va. App. 1993) (credibility and weight of medical evidence in MMI determinations)