COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Bumgardner Argued at Alexandria, Virginia
SHIRLEY CONTRACTING CORPORATION MEMORANDUM OPINION * BY v. Record No. 1545-97-4 JUDGE ROSEMARIE ANNUNZIATA FEBRUARY 24, 1998 GARLAND DUNKLEY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
John H. Carstens (Jordan, Coyne & Savits, on briefs), for appellant. Charles W. O'Donnell (Charles W. O'Donnell, P.C., on brief), for appellee.
Shirley Contracting Corporation (employer) appeals the
decision of the Workers' Compensation Commission denying its
applications to terminate the benefits of Garland Dunkley
(claimant). Employer contends that claimant was released to
work, but unjustifiably refused selective employment by violating
employer's substance abuse policy. It also contends that the
commission erroneously found that claimant was totally disabled.
Finding no error, we affirm.
On January 13, 1996, claimant was injured in an accident
when he was thrown against the windshield of a front-end loader
he was operating. Claimant was diagnosed with cervical and
trapezius strain affecting his neck. Employer accepted
claimant's injury as compensable.
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. On January 29, 1996, Dr. Samir Azer examined claimant and
diagnosed him with cervical strain with underlying cervical
spondylosis; both conditions related to claimant's neck. On
April 26, Dr. Azer wrote a certificate of disability which stated
that claimant could return to light duty work as of April 15,
with no pushing, no pulling, no lifting, and no lifting over 15
pounds overhead. However, the employer did not offer claimant
light duty employment because claimant's employment had been
terminated effective February 6, 1996 after a urine sample
collected from him on January 22, 1996 tested positive for
cannabinoids. On May 13, claimant reported his leg pain to Dr. Azer.
Because claimant had not previously complained of leg pain, Dr.
Azer decided to "leave that up to his treating physician to take
care of." Dr. Azer stated that, "As far as his cervical spine is
concerned, I believe the patient is allowed to go regular duty as
of a week from today," and signed a certificate of disability
which stated that claimant could return to work on May 20, 1996.
On May 21, however, Dr. Mirza S. Baig, another health care
provider to whom claimant was referred, diagnosed claimant with,
inter alia, cervical and lumbar radiculopathy and lumbosacral
strain. On May 28, 1996, this physician noted that claimant
continued to complain of pain in the lower extremities and
advised claimant to see Dr. James Preuss for a second opinion.
On May 31, 1996, Dr. Preuss stated that claimant had cervical
2 spine strain, cervical spondylosis, and discogenic disease. Dr.
Preuss stated that although he would like more information, he
"would not be anxious to proceed with any cervical spine
surgery." On June 5, 1996, Dr. Mirza Baig stated that claimant
was unable to work effective May 22, 1996.
Employer filed two applications in this case. In the first,
employer sought to terminate claimant's benefits on the basis of
"claimant's refusal of selective employment"; employer contended
claimant's violation of the employer's drug policy and the
resultant termination of his employment constituted a refusal of
selective employment after claimant was released to light duty
work. Employer's second application sought to terminate
claimant's benefits on the basis that he had been released to
regular duty on May 20, 1996. The deputy commissioner found that claimant violated
employer's drug policy, that claimant was not totally disabled
and had been released to light duty on April 22, 1996 and that
claimant's violation of the drug policy constituted an
unjustified refusal of selective employment. The deputy
commissioner also found that Dr. Azer's release to regular work
on May 13, 1996 was anticipatory and did not address claimant's
problem in his right leg.
After both employer and claimant requested review, the full
commission entered an opinion on May 28, 1997. The commission
stated: We find that the claimant was not released to
3 light duty employment. Dr. Azer's release is limited and prospective. The Commission does not credit prospective releases. Counterman v. Providence Electric Corp., 71 O.W.C. 82 (1992). We find Dr. Baig's opinion persuasive that the claimant has been totally disabled commencing May 22, 1996.
Commissioner Joyner filed a concurring opinion stating that there
was no evidence that claimant violated employer's drug policy.
Employer contends that claimant unjustifiably refused
selective employment after being released to light duty because
he was fired for cause after testing positive for drugs in
violation of its drug policy. See Chesapeake & Potomac Telephone
Co. v. Murphy, 12 Va. App. 633, 639-40, 406 S.E.2d 190, 193,
aff'd, 13 Va. App. 304, 411 S.E.2d 444 (1991) (en banc) ("[W]here
a disabled employee is terminated for cause from selective
employment procured or offered by his employer, any subsequent
wage loss is properly attributable to his wrongful act rather
than his disability."). Ken Jenkins, Claims Specialist,
testified on behalf of employer that he identified a light-duty
position for claimant on January 22, 1996, which was available
when claimant was released for light-duty work, but which was not
offered to claimant because he had violated the drug policy.
Specifically, employer argues that the record fails to
support the commission's finding that claimant was not released
to light duty by Azer and that, consequently, claimant
unjustifiably refused selective employment, precluding an award
of benefits. We do not reach the question of the validity of Dr.
4 Azer's release to light duty because we find as a matter of law
that the evidence was insufficient to support employer's claim
that claimant violated its drug policy, the factual predicate for
employer's contention that claimant unjustifiably refused
selective employment. See Kenbridge Constr. Co. v. Poole, 25 Va.
App. 115, 118, 486 S.E.2d 567, 569 (1997) (citing Cibula v.
Allied Fibers & Plastics, 14 Va. App. 319, 324, 416 S.E.2d 708,
711 (1992)) (explaining that where there is no conflict in the
evidence, the sufficiency of the evidence is a question of law). "Where passing drug and alcohol screening is made a clear
and unequivocal condition of employment, . . . failure to pass
the screening is tantamount to misconduct under Murphy[, 12 Va.
App. at 639-40, 406 S.E.2d at 193,] for which an employee can be
terminated." Richfood, Inc. v. Williams, 20 Va. App. 404, 410,
457 S.E.2d 417, 420 (1995).
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COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Bumgardner Argued at Alexandria, Virginia
SHIRLEY CONTRACTING CORPORATION MEMORANDUM OPINION * BY v. Record No. 1545-97-4 JUDGE ROSEMARIE ANNUNZIATA FEBRUARY 24, 1998 GARLAND DUNKLEY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
John H. Carstens (Jordan, Coyne & Savits, on briefs), for appellant. Charles W. O'Donnell (Charles W. O'Donnell, P.C., on brief), for appellee.
Shirley Contracting Corporation (employer) appeals the
decision of the Workers' Compensation Commission denying its
applications to terminate the benefits of Garland Dunkley
(claimant). Employer contends that claimant was released to
work, but unjustifiably refused selective employment by violating
employer's substance abuse policy. It also contends that the
commission erroneously found that claimant was totally disabled.
Finding no error, we affirm.
On January 13, 1996, claimant was injured in an accident
when he was thrown against the windshield of a front-end loader
he was operating. Claimant was diagnosed with cervical and
trapezius strain affecting his neck. Employer accepted
claimant's injury as compensable.
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. On January 29, 1996, Dr. Samir Azer examined claimant and
diagnosed him with cervical strain with underlying cervical
spondylosis; both conditions related to claimant's neck. On
April 26, Dr. Azer wrote a certificate of disability which stated
that claimant could return to light duty work as of April 15,
with no pushing, no pulling, no lifting, and no lifting over 15
pounds overhead. However, the employer did not offer claimant
light duty employment because claimant's employment had been
terminated effective February 6, 1996 after a urine sample
collected from him on January 22, 1996 tested positive for
cannabinoids. On May 13, claimant reported his leg pain to Dr. Azer.
Because claimant had not previously complained of leg pain, Dr.
Azer decided to "leave that up to his treating physician to take
care of." Dr. Azer stated that, "As far as his cervical spine is
concerned, I believe the patient is allowed to go regular duty as
of a week from today," and signed a certificate of disability
which stated that claimant could return to work on May 20, 1996.
On May 21, however, Dr. Mirza S. Baig, another health care
provider to whom claimant was referred, diagnosed claimant with,
inter alia, cervical and lumbar radiculopathy and lumbosacral
strain. On May 28, 1996, this physician noted that claimant
continued to complain of pain in the lower extremities and
advised claimant to see Dr. James Preuss for a second opinion.
On May 31, 1996, Dr. Preuss stated that claimant had cervical
2 spine strain, cervical spondylosis, and discogenic disease. Dr.
Preuss stated that although he would like more information, he
"would not be anxious to proceed with any cervical spine
surgery." On June 5, 1996, Dr. Mirza Baig stated that claimant
was unable to work effective May 22, 1996.
Employer filed two applications in this case. In the first,
employer sought to terminate claimant's benefits on the basis of
"claimant's refusal of selective employment"; employer contended
claimant's violation of the employer's drug policy and the
resultant termination of his employment constituted a refusal of
selective employment after claimant was released to light duty
work. Employer's second application sought to terminate
claimant's benefits on the basis that he had been released to
regular duty on May 20, 1996. The deputy commissioner found that claimant violated
employer's drug policy, that claimant was not totally disabled
and had been released to light duty on April 22, 1996 and that
claimant's violation of the drug policy constituted an
unjustified refusal of selective employment. The deputy
commissioner also found that Dr. Azer's release to regular work
on May 13, 1996 was anticipatory and did not address claimant's
problem in his right leg.
After both employer and claimant requested review, the full
commission entered an opinion on May 28, 1997. The commission
stated: We find that the claimant was not released to
3 light duty employment. Dr. Azer's release is limited and prospective. The Commission does not credit prospective releases. Counterman v. Providence Electric Corp., 71 O.W.C. 82 (1992). We find Dr. Baig's opinion persuasive that the claimant has been totally disabled commencing May 22, 1996.
Commissioner Joyner filed a concurring opinion stating that there
was no evidence that claimant violated employer's drug policy.
Employer contends that claimant unjustifiably refused
selective employment after being released to light duty because
he was fired for cause after testing positive for drugs in
violation of its drug policy. See Chesapeake & Potomac Telephone
Co. v. Murphy, 12 Va. App. 633, 639-40, 406 S.E.2d 190, 193,
aff'd, 13 Va. App. 304, 411 S.E.2d 444 (1991) (en banc) ("[W]here
a disabled employee is terminated for cause from selective
employment procured or offered by his employer, any subsequent
wage loss is properly attributable to his wrongful act rather
than his disability."). Ken Jenkins, Claims Specialist,
testified on behalf of employer that he identified a light-duty
position for claimant on January 22, 1996, which was available
when claimant was released for light-duty work, but which was not
offered to claimant because he had violated the drug policy.
Specifically, employer argues that the record fails to
support the commission's finding that claimant was not released
to light duty by Azer and that, consequently, claimant
unjustifiably refused selective employment, precluding an award
of benefits. We do not reach the question of the validity of Dr.
4 Azer's release to light duty because we find as a matter of law
that the evidence was insufficient to support employer's claim
that claimant violated its drug policy, the factual predicate for
employer's contention that claimant unjustifiably refused
selective employment. See Kenbridge Constr. Co. v. Poole, 25 Va.
App. 115, 118, 486 S.E.2d 567, 569 (1997) (citing Cibula v.
Allied Fibers & Plastics, 14 Va. App. 319, 324, 416 S.E.2d 708,
711 (1992)) (explaining that where there is no conflict in the
evidence, the sufficiency of the evidence is a question of law). "Where passing drug and alcohol screening is made a clear
and unequivocal condition of employment, . . . failure to pass
the screening is tantamount to misconduct under Murphy[, 12 Va.
App. at 639-40, 406 S.E.2d at 193,] for which an employee can be
terminated." Richfood, Inc. v. Williams, 20 Va. App. 404, 410,
457 S.E.2d 417, 420 (1995). At the hearing on employer's
applications before the deputy commissioner, employer introduced
two versions of employer's drug policy, one of which was no
longer in effect and not currently enforced. Employer's drug
policy in effect since 1995 reads in relevant part: The possession, transfer, manufacture, distribution, dispensation, sale or use of drugs and/or alcoholic beverages on Company property or jobsites is not tolerated by the Company and is inconsistent with its goal of operating in a safe and productive manner. Accordingly, no employee, subcontractor or visitor shall use or have in his or her possession such contraband on Company property or jobsites. Additionally, no Company employee shall report to work under the influence of alcohol or drugs or having an illegal or unauthorized drug present in
5 the body. Any employee violating this policy will be subject to disciplinary actions. In order to enforce this policy, the Company reserves the right to request persons subject to the policy to take fitness for duty tests. Confirmed positive results from a fitness for duty test shall be grounds for disciplinary action.
Laura Jargo, employer's Director of Human Resources,
admitted on cross-examination that claimant did not violate the
previous drug policy, and could not state how claimant violated
the current policy. Employer's attorney agreed that claimant did
not report to work on January 22, 1996, the date the urine sample
was collected. Jargo testified that she could not say that
claimant had possessed, transferred, manufactured, or distributed
drugs on employer's property as prohibited by the drug policy.
In addition, the uncontroverted evidence established that while
claimant gave a positive sample on January 22, 1996, he had not
worked after January 14, 1996. Thus, employer presented no
evidence that claimant possessed drugs "on Company property or
jobsites" or reported to work under the influence of drugs or
with drugs present in his body. We find, therefore, that
claimant did not violate employer's drug policy, and did not
unjustifiably refuse selective employment. In addressing employer's second application to terminate
claimant's benefits on the ground that he was released to regular
duty, the commission found that claimant was totally disabled as
of May 22, 1996. Employer claims that the commission's finding
is not supported by credible evidence. We find this contention
6 to be without merit. We will reverse the commission's finding of
total disability only if it is unsupported by the evidence.
Daniel Constr. Co. v. Tolley, 24 Va. App. 70, 76-77, 480 S.E.2d
145, 148 (1997).
Employer acknowledges that Dr. Mirza Baig certified that
claimant was totally disabled on May 22, 1996. Nevertheless,
employer argues that the commission's decision was based on the
erroneous belief that Dr. Baig recommended neck fusion surgery.
Employer also argues that Dr. Baig's opinion was, in turn, not
reliable. We agree that the commission erroneously noted in its
summary of the facts that Dr. Baig recommended neck surgery. The
record does not support employer's contention, however, that this
misstatement of the facts formed the basis of the commission's
decision. Dr. Baig certified that claimant was totally disabled
after she examined claimant herself and diagnosed claimant as
having, inter alia, cervical radiculopathy. Dr. Preuss' findings
of degenerative changes in the cervical spine and other cervical
problems support Dr. Baig's diagnosis. On the basis of her
diagnosis of cervical radiculopathy, Dr. Baig determined that
claimant was totally disabled. Although Dr. Azer issued a
contrary opinion, we do not "make [our] own determination of the
credibility of witnesses" in assessing the evidence before the
commission. Wagner Enters., Inc. v. Brooks, 12 Va. App. 890,
894, 407 S.E.2d 32, 35 (1991) (citing Jules Hairstylists, Inc. v.
7 Galanes, 1 Va. App. 64, 69, 334 S.E.2d 592, 595 (1985)). We find
that Dr. Baig's certification that claimant was totally disabled
as of May 22, 1996, constitutes credible evidence to support the
commission's opinion.
Affirmed.