                    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




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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



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          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.



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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


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          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.




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