COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Humphreys and Powell
Argued at Richmond, Virginia
JASPER FREEMAN McMICHAEL
MEMORANDUM OPINION * BY
v. Record No. 0426-08-2 JUDGE CLEO E. POWELL
DECEMBER 23, 2008
M.M. WRIGHT, INC. AND VIRGINIA FORESTRY
SAFETY GROUP SELF-INSURANCE ASSOCIATION/
PMA MANAGEMENT CORPORATION
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Jasper Freeman McMichael, pro se.
Angela F. Gibbs (Richard S. Sperbeck; Midkiff, Muncie & Ross,
on brief), for appellees.
Jasper Freeman McMichael (“McMichael”) appeals a decision of the Virginia Workers’
Compensation Commission (“commission”) denying him benefits for a leg injury he incurred
during a fight with his supervisor. McMichael contends that his former employer, M.M. Wright,
Inc. (“M.M. Wright”), failed to prove his injury was the result of his intoxication. McMichael
further contends that the commission erroneously determined that he was the aggressor in the
fight. For the reasons that follow, we hold that the commission did not err and, therefore, affirm
the denial of benefits.
I. BACKGROUND
“On appeal, we view the evidence and all reasonable inferences that may be drawn from
that evidence in the light most favorable to the party prevailing below.” Stillwell v. Lewis Tree
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Service, Inc., 47 Va. App. 471, 474, 624 S.E.2d 681, 682 (2006). So viewed, the evidence in this
case establishes the following.
McMichael worked for M.M. Wright as a skidder operator. On October 23, 2006, at
approximately 7:00 a.m., McMichael approached his supervisor, Junior Drummond
(“Drummond”). McMichael was agitated with the type of work that Drummond wanted him to
do. Drummond told McMichael that he should complain to Drummond’s supervisor.
In response, McMichael threw his hands up and scratched Drummond’s right cheek.
McMichael then grabbed Drummond’s left leg, forcing Drummond to grab McMichael’s head in
order to maintain his balance. Drummond realized that McMichael would not release his leg, so
Drummond “dropped [his] weight on [McMichael].” This knocked McMichael off-balance,
causing him to fall to the ground. As he fell, his leg went into a stump hole, causing it to break.
Jesse Walker (“Walker”), a co-worker, then approached McMichael. Walker testified
that he could smell alcohol on McMichael’s breath. Walker and Phillip Basham (“Basham”),
another co-worker, both testified that McMichael was acting strangely prior to the fight. Basham
further described McMichael as “acting kind of wild and didn’t want to listen.”
McMichael was taken to the John Randolph Medical Center for emergency treatment.
He told medical staff that he had a fight with his supervisor, and his supervisor had twisted his
left leg, causing it to break. Dr. Manjit S. Dhillon, the admitting doctor, diagnosed McMichael
with a fractured left tibia and fibula.
In his notes, Dr. Dhillon noted that McMichael was “alert and awake, somewhat drowsy
secondary to alcohol.” Additionally, a toxicology report showed the presence of alcohol
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and opiates 1 in McMichael’s urine. When asked the last time he had had any alcohol,
McMichael claimed he had not had any alcohol since 4:00 p.m. the day before.
By opinion dated July 20, 2007, the deputy commissioner held that the evidence failed to
prove that McMichael’s alcohol consumption was the proximate cause of the accident or that
McMichael was the aggressor in the altercation. She awarded McMichael medical benefits for
his left leg injury and temporary total disability benefits from October 23, 2006 to March 22,
2007.
Employer appealed to the full commission. In an opinion dated January 15, 2008, the
commission reversed the award of benefits. The commission reasoned that, because the
evidence showed that McMichael was under the influence of alcohol, his testimony was not
credible. Accordingly, the commission found that Drummond’s version of events was more
probable. Thus, McMichael failed to carry his burden of proving that he was not the aggressor in
the fight. McMichael appealed the commission’s decision to this Court.
II. ANALYSIS
A. Intoxication
McMichael contends that the commission erred in determining that the employer had met
its burden of establishing that McMichael’s injury was the result of his intoxication. “To
establish an affirmative defense, an employer must prove by a preponderance of the evidence
that intoxication proximately caused [McMichael’s] injury.” Wyle v. Professional Services
Industries, Inc., 12 Va. App. 684, 688, 406 S.E.2d 410, 412 (1991) (citing American Safety
Razor Co. v. Hunter, 2 Va. App. 258, 262, 343 S.E.2d 461, 464 (1986)). In this case, however,
1
Although employer argues that the presence of opiates further demonstrates
McMichael’s level of intoxication, a review of McMichael’s medical records indicates that he
received at least one injection of morphine prior to the collection of the urine sample, thus
accounting for the presence of opiates in his system.
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the commission did not determine that McMichael’s injury was the result of his intoxication;
rather, the commission determined that McMichael’s intoxication made his version of events less
credible than that of other witnesses. Specifically, the commission found:
The level of intoxication is unknown; however, the evidence shows
that the physicians noticed it at the hospital that day after he
claimed to have last consumed alcohol, and his ride to work
noticed the smell of alcohol the morning after he allegedly last
consumed alcohol. The claimant was under the influence of
alcohol to a level that required treatment at the hospital late the
next day; accordingly, we do not give weight to his version of
events.
“‘Decisions of the commission as to questions of fact, if supported by credible evidence,
are conclusive and binding on this Court.’” Basement Waterproofing & Drainage v. Beland, 43
Va. App. 352, 358, 597 S.E.2d 286, 289 (2004) (quoting WLR Foods, Inc. v. Cardosa, 26
Va. App. 220, 230, 494 S.E.2d 147, 152 (1997)). “‘The commission, like any other fact finder,
may consider both direct and circumstantial evidence in its disposition of a claim. Thus, the
commission may properly consider all factual evidence, from whatever source, in its decision
whether or not a condition of the workplace caused the injury.’” Id. (quoting VFP, Inc. v.
Shepherd, 39 Va. App. 289, 293, 572 S.E.2d 510, 512 (2002)).
Nowhere in its decision did the commission state that McMichael’s injury was the result
of his intoxication; rather the commission very plainly stated that it was discounting
McMichael’s version of events due to his intoxication.
B. Aggressor
[W]here a claimant has been injured while fighting with a
co-worker, that injury “arises out of” the claimant’s employment
only if two elements are satisfied: (1) the fight was not personal,
but rather, was related to the manner of conducting business, and
(2) the claimant was not responsible for the fight. Where the
alleged injury is incurred during a fight with a co-worker, then, the
claimant must affirmatively prove both elements in order to
establish the requisite causal connection between the injury and the
employment.
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Stillwell, 47 Va. App. at 481-82, 624 S.E.2d at 685 (citing Farmers Manufacturing Co. v. Warfel,
144 Va. 98, 104, 131 S.E. 240, 241 (1926)).
Although the commission made no finding regarding the first element, the record is clear
that the initial confrontation between McMichael and Drummond resulted from McMichael’s
disagreement with the type of work Drummond wanted him to do. As such, appellant has
satisfied the first element.
Appellant cannot, however, satisfy the second element. Once the commission discounted
McMichael’s version of events, the only remaining version on which it could rely was
Drummond’s version. In Drummond’s version of events, McMichael was clearly the aggressor.
III. CONCLUSION
For the foregoing reasons, the decision of the commission is affirmed.
Affirmed.
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