                    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, . . .




                                - 3 -
'[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"




                                - 4 -
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




                                - 5 -
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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