COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Elder
Argued at Richmond, Virginia
RICHFOOD, INC. AND OLD REPUBLIC
INSURANCE COMPANY
OPINION BY
v. Record No. 1634-94-2 CHIEF JUDGE NORMAN K. MOON
MAY 23, 1995
JAMES A. WILLIAMS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
R. Ferrell Newman (Glenn S. Phelps; Thompson, Smithers,
Newman & Wade, on brief), for appellants.
Louis D. Snesil (McDonald & Snesil, on brief),
for appellee.
Appellants, Richfood, Inc. and Old Republic Insurance
Company, appeal the commission's decision to award James A.
Williams temporary partial disability benefits based on its
finding that Williams cured his "constructive refusal of
selective employment." We find that Williams's employment with
Richfood, Inc. was terminated because of his failure to pass a
drug screening as a condition of employment pursuant to a written
agreement, and we hold that because such termination was for
cause, any subsequent wage loss was due to Williams's wrongful
act rather than his disability, and thus, was not Richfood's
responsibility. See Chesapeake and Potomac Telephone Co. v.
Murphy, 12 Va. App. 633, 406 S.E.2d 190, aff'd en banc, 13 Va.
App. 304, 411 S.E.2d 444 (1991).
Williams was employed by Richfood, Inc. beginning in 1985.
On June 17, 1990, Williams sustained a compensable injury to his
back. Prior thereto, Williams, who admitted to a drug problem,
executed a "Conditional Reinstatement Agreement" with Richfood
whereby Williams, as a condition of employment, agreed to undergo
drug screening at any time upon Richfood's request. Under the
agreement, failure or refusal of drug screening constituted
grounds for termination of Williams's employment with Richfood.
After his June 17, 1990 accident, Williams returned to light
duty several times to perform work for Richfood. On several
occasions, Williams was asked to undergo drug screening and
tested negative for drugs. In January 1991, Williams stopped
working at Richfood altogether because of his back.
In October of 1991, while Williams underwent therapy at the
Return to Work Center, Richfood and Williams had discussions
concerning his return to work. Carl Warren, a safety manager at
Richfood, testified that he visited Williams at the Center and
offered him a position, which Warren had arranged, as an office
clerk. As a condition to obtaining the clerk's position, Warren
stated that he told Williams that he would have to pass a drug
screening because of the written agreement and company policy
requiring anyone out of work for thirty days to pass the
screening. Williams testified that he remembered discussions
about the possibility of his return to light duty, but that
Warren never made an offer. Williams admitted that after these
discussions, Warren asked him to submit a urine sample for drug
screening. 1
1
Williams would later recant this position during his second
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On November 1, 1991, Williams visited Warren at Richfood and
learned from Warren that he was being terminated because he
tested positive for cocaine. In December 1991, Richfood filed an
application with the Workers' Compensation Commission alleging,
in part, that Williams forfeited his right to benefits by being
terminated as a consequence of drug use. In September 1992, the
commission affirmed the deputy commissioner's "findings of fact
and conclusions of law" in favor of Richfood's application to
terminate Williams's benefits, ruling that credible evidence was
presented to support a finding that "Richfood was prepared to
hire [Williams] back on November 1, 1991, but instead terminated
him due to the drug use . . . that his unemployment after that
date was not due to the injury but rather his own actions."
Williams v. Richfood, Inc., 71 O.W.C. 286 (1992) (Williams I).
In September 1993, Williams filed a change of condition
application requesting reinstatement of benefits based on his new
job as a cook. Richfood defended against the application on the
ground that Williams was barred from receiving further disability
benefits because he had been terminated for cause from selective
employment procured by his employer. In August 1994, the
commission reversed the deputy commissioner's decision that
Williams's application should be denied pursuant to Murphy. On
hearing before the deputy commissioner in 1993 when he requested
reinstatement of his benefits. During the 1993 hearing, Williams
was required to prove that he had cured a prior refusal to accept
selective employment procured by Richfood, Inc. in order to secure
his benefits. Williams stated that he recalled the discussions
about his return to work, including the accommodating
restrictions, the hours and days to be worked, as well as the rate
of pay.
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appeal, appellants argue that the August 1994 opinion of the
commission (Williams II) is erroneous because it does not comport
with the holding of Murphy. We agree and accordingly reverse the
commission's decision. 2
Under the Virginia Workers' Compensation Act, "[i]f an
injured employee refuses employment procured for him suitable to
his capacity, he shall only be entitled to the benefits provided
for in § 65.2-603 during the continuance of such refusal, unless
in the opinion of the Commission such refusal was justified."
Code § 65.2-510.
An injured employee may "cure" an unjustified refusal
of selective employment provided or procured by the
employer by accepting such employment or by obtaining
comparable selective employment. However, an employee
on selective employment offered or procured by the
employer, who is discharged for cause and for reasons
not concerning the disability, forfeits his or her
right to compensation benefits like any other employee
who loses employment benefits when discharged for
cause.
Timbrook v. O'Sullivan Corp., 17 Va. App. 594, 597, 439 S.E.2d
873, 875 (1994) (citations omitted).
In Murphy, we held that "where 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. The
employee is responsible for that loss and not the employer."
Murphy, 12 Va. App. at 639-40, 406 S.E.2d at 193. The
justification for the rule, we reasoned, is that the wage loss is
2
The claimant in Williams I is the same claimant whose case
was before the commission in Williams II and is now before this
Court on appeal.
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attributable to the employee's wrongful act rather than the
disability, and in that context, we were "unable to find any
provision within the Workers' Compensation Act which evidences an
intent by the legislature to place such an employee in a better
position than an uninjured employee who is terminated for cause
and by his wrongful act suffers a loss of income." Id. at 639,
406 S.E.2d at 193.
In the present case, Williams II, the deputy commissioner,
pursuant to Murphy, ruled that Williams's failure of his drug
screening was tantamount to misconduct, justifying his
termination for cause, and that he was not entitled to further
benefits. The commission reversed the deputy commissioner,
ruling that Williams's prior termination for cause was a
"constructive refusal of selective employment" and could be
cured. The commission based its decision on Timbrook, ruling
that "misconduct while currently employed that only interferes
with job placement efforts of the employer constitutes only a
constructive refusal of selective employment and may be cured."
The commission's "constructive refusal" analysis is erroneous and
its reliance on Timbrook is misplaced.
In Timbrook, the commission denied Timbrook reinstatement of
the suspended benefits, ruling that based upon the holding in
Murphy, Timbrook had forfeited her benefits and was forever
barred from reinstatement because she had been discharged for
cause from employment provided by her employer. 17 Va. App. at
595, 439 S.E.2d at 874. We reversed the commission, holding that
"when an employer discharges a partially disabled employee for
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unjustifiably failing or refusing to report for selective
employment, the employee is not barred from curing the
unjustified refusal." Id.
We noted that Murphy did not control Timbrook's case because
"Timbrook's failure to give notice on three consecutive days that
she would be absent from work was not a basis for terminating her
for cause when she had affirmatively refused the offer of
selective employment." Id. at 598, 439 S.E.2d at 876 (emphasis
added). We further ruled:
It is unreasonable to expect an employee who has
affirmatively refused an offer of selective employment
to thereafter call and inform the employer that she
would be absent from that work which she has refused.
It goes without saying that an employee who refuses an
offer of selective employment, whether justifiably or
unjustifiably, will be absent from work. . . .
Timbrook's termination was not for cause or for
misconduct, as in Murphy, that justified a forfeiture
of her compensation benefits that could never be cured.
Thus, the Murphy forfeiture rule does not apply in
Timbrook's situation where, in effect, she was
terminated for failing to report for selective
employment.
Id.
The commission attempts to force the facts of this case to
fit the Timbrook scenario by characterizing Williams's drug use
as misconduct "that only interferes with the job placement
efforts of the employer." However, Timbrook and Williams's case
are inapposite. Williams's termination, unlike Timbrook's, was
clearly for cause and had nothing to do with his "refusal" to
report for selective employment. Furthermore, the reason for
Williams's termination was unrelated to his injury and was due
solely to his misconduct. Indeed, the commission first ruled, in
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Williams I, that Williams was terminated for cause. Williams
cannot, now, attempt to re-characterize his termination as a
"constructive refusal of selective employment" in order to
qualify for benefits.
We hold, as the commission found in Williams I, that had
Williams not tested positive for cocaine, he would have been
employed beginning November 1, 1991. At the time of the drug
screening, Williams was, for all practical purposes, still under
a contract of employment with Richfood, though he was only able
to do light duty work which was offered by Richfood and accepted
by Williams up until the time of his termination.
Where passing drug and alcohol screening is made a clear and
unequivocal condition of employment, as here, pursuant to
Williams's contract with Richfood, failure to pass the screening
is tantamount to misconduct under Murphy for which an employee
can be terminated. Accordingly, we hold that, because the
selective employment was procured and made available solely by
the efforts of Richfood, Inc., Williams cannot now cure his
termination for cause and, therefore, may not have his benefits
reinstated.
Reversed.
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