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 
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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.