Timothy Gray v. ATS Service/Accustaff, Inc. ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
Argued at Alexandria, Virginia
TIMOTHY GRAY
v. Record No. 2441-95-4
ATS SERVICE/ACCUSTAFF, INC. and
RELIANCE INSURANCE COMPANY
MEMORANDUM OPINION * BY
JUDGE SAM W. COLEMAN III
APRIL 9, 1996
ATS SERVICE/ACCUSTAFF, INC. and
RELIANCE INSURANCE COMPANY
v. Record No. 2271-95-4
TIMOTHY GRAY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Peter M. Sweeny (Peter M. Sweeny &
Associates, P.C., on briefs), for Timothy
Gray.
Roger L. Williams (Vasiliki Moudilos;
Williams & Pierce, on briefs), for ATS
Service/Accustaff, Inc. and Reliance
Insurance Company.
Timothy Gray (claimant) appeals the commission's holding
that he was terminated from his employment with ATS
Service/Accustaff, Inc. (Accustaff) for misconduct or cause that
would justifiably bar his claim for compensation benefits.
Accustaff cross-appeals and contends that the commission erred by
finding that claimant was temporarily totally disabled, and that
he did not have a duty to market his residual capacity or to
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
accept selective employment. We find no error and affirm the
commission's award.
I. Termination for Justified Cause
Claimant contends that he was not actually terminated from
his employment because Accustaff's drug policy provides that a
discharged employee who tested positive for drug use is eligible
to be rehired if after thirty days he tests negative for drugs.
He asserts, therefore, that the policy operates like a temporary
suspension, not a discharge. Alternatively, he claims that
Accustaff terminated him because he had a compensable accident,
and, therefore his discharge was not justified; he argues that
the drug test was conducted in response to the accident in an
effort to find a reason to terminate his employment and his
1
employment benefits. We find no merit in claimant's argument
and affirm the commission's finding.
1
Employees who are "terminated for cause from selective
employment procured by [their] employer" are barred from
receiving partial disability benefits. Chesapeake & Potomac
Telephone Co. v. Murphy, 12 Va. App. 633, 639, 406 S.E.2d 190,
193 (emphasis in original), aff'd en banc, 13 Va. App. 304, 411
S.E.2d 444 (1991); see Eppling v. Schultz Dining Programs, 18 Va.
App. 125, 128-29, 442 S.E.2d 219, 221 (1994) (discussing the type
of misconduct that constitutes justified cause for termination
that serves to bar partial disability benefits). Therefore,
claimant challenges the commission's finding that he was
terminated for cause in order to preserve his future eligibility
for partial disability benefits should he be released to return
to work. See K & L Trucking Co. v. Thurber, 1 Va. App. 213, 219,
337 S.E.2d 299, 302 (1985). Although the commission did not
address claimant's eligibility for partial disability benefits
because it found that he was totally disabled, whether he was
discharged for misconduct or justified cause is justiciable
because it was necessary to the commission's finding that
termination for justified cause does not preclude an injured
employee from receiving temporary total disability benefits.
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Accustaff's drug policy explicitly provides that testing
positive for drugs may result in termination, not suspension.
"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 for which an
employee can be terminated." Richfood, Inc. v. Williams, 20 Va.
App. 404, 410, 457 S.E.2d 417, 420 (1995). Deborah Yeakel, an
employee of Accustaff, testified that claimant was terminated
because he tested positive for marijuana. The fact that an
employee who was terminated after testing positive for drugs is
eligible for rehire if the results of a second test taken after
thirty days are negative does not transform a termination into a
suspension. Therefore, credible evidence supports the
commission's finding that claimant was terminated for justified
cause.
Furthermore, we find no merit in the employee's argument
that the possibility that he would file a compensation claim for
his injury caused the employer to conduct the drug screen as a
means of avoiding liability. The employer's reason or motivation
for investigating an employee's misconduct does not bar the
employer from raising misconduct as a defense to a claim for
compensation where the employee's wage loss is due to his
misconduct.
II. Total Disability
"In cases where there is conflicting medical evidence, . . .
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'[the commission] is left free to adopt that view which is most
consistent with reason and justice.'" Pilot Freight Carriers,
Inc. v. Reeves, 1 Va. App. 435, 439, 339 S.E.2d 570, 572 (1986)
(quoting Bristol Builders' Supply Co. v. McReynolds, 157 Va. 468,
471, 162 S.E. 8, 9 (1932)). Accustaff contends that there is no
conflict in the medical evidence in this case because the
emergency room physician released claimant for light duty
employment with no use of his left arm and Dr. Peter J. Verdin,
Jr., the treating physician, confirmed that his "opinion is only
limited to [claimant's] ability to work as a laborer." Thus,
Accustaff contends Dr. Verdin only addressed the claimant's
ability to return to employment similar to his pre-injury
employment and did not address claimant's residual capacity to do
other work. Accustaff further contends that because the
emergency room doctor's opinion is the only evidence on the
issue, the commission's finding that claimant was totally
disabled was contrary to the only evidence in the record
concerning claimant's capacity for selective employment.
"On appeal, we view the evidence in the light most favorable
to the prevailing party. Findings of fact made by the commission
are binding on appeal if they are supported by credible
evidence." Georgia Pacific Corp. v. Dancy, 17 Va. App. 128,
133-34, 435 S.E.2d 898, 901 (1993) (citations omitted).
Here, Dr. Verdin examined claimant on June 2, 1994, and
concluded "that he should be off of work for another three weeks"
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at which time he should return "for evaluation to return to
work." The medical report from Dr. Verdin's initial examination
does not qualify or otherwise limit the meaning of the term
"work." Moreover, Dr. Verdin stated unequivocally in a July 7,
1994 medical report that claimant is "temporarily and totally
disabled because of [his] left shoulder injury." Although Dr.
Verdin admitted in his deposition that he "did not evaluate
[claimant] for a light-duty job," he also stated that he has
never been asked to do a physical capacity evaluation for light
duty work and that there is no question in his mind that claimant
"has had persistent unremitting symptoms in his shoulder."
Moreover, Dr. Verdin opined that claimant required arthroscopy to
determine whether a resection of claimant's distal clavicle was
necessary to correct his "persistent and unremitting symptoms in
his shoulder." At no time during Dr. Verdin's deposition did he
recant or qualify his earlier statement that claimant is
temporarily totally disabled.
Accordingly, credible evidence supports the commission's
finding that Dr. Verdin diagnosed claimant as being totally
disabled, and that Dr. Verdin's opinion is entitled to greater
weight than the emergency room physician's opinion. See Reeves,
1 Va. App. at 439, 339 S.E.2d at 572. Because the evidence
supported the commission's finding that claimant was totally
disabled, the claimant did not have a duty to market his residual
capacity or accept selective employment at the time of the
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hearing. A.G. Van Metre, Jr., Inc. v. Gandy, 7 Va. App. 207,
216, 372 S.E.2d 198, 203 (1988). Also, the fact that claimant
was terminated for justified cause does not preclude him from
receiving temporary total disability benefits because "[t]he wage
loss at issue . . . is not attributable to claimant's wrongful
conduct, but rather to h[is] total disability caused by a
compensable industrial accident." Potomac Edison Co. v. Cash, 18
Va. App. 629, 633, 446 S.E.2d 155, 157 (1994).
Credible evidence supports the commission's finding that
claimant was terminated for justified cause. However, because
the commission's finding that claimant is totally disabled is
also supported by credible evidence, we affirm the award of
temporary total disability benefits.
Record No. 2441-95-4 Affirmed.
Record No. 2271-95-4 Affirmed.
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