COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Bray
Argued at Norfolk, Virginia
ELCO CONCRETE CO., INC.
and
VALLEY FORGE INSURANCE COMPANY MEMORANDUM OPINION * BY
CHIEF JUDGE NORMAN K. MOON
v. Record No. 0047-96-1 JUNE 25, 1996
DAVID TRACY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Roya Palmer (Law Offices of Richard A.
Hobson, on brief), for appellants.
Gregory E. Camden (Rutter & Montagna, on
brief), for appellee.
Elco Concrete Co. Inc., and Valley Forge Insurance Company
appeal from the decision by the Workers' Compensation Commission
awarding benefits to David Tracy. The employer claims that the
commission erred in finding that Tracy's injury was not caused by
his intoxication. We affirm the commission's decision.
At the time of the accident, Tracy was working on the third
floor of an unfinished building. The frame and floor of the
building were in place, but the walls had not yet been
constructed. Two steel safety cables were ordinarily strung
between the metal frames to keep employees from falling off the
building. However, the bottom cable was not attached at the time
of Tracy's accident. There was construction debris on the floor
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
where Tracy was working.
At approximately 2:00 p.m. on January 24, 1995, Tracy was
assisting in moving a piece of scaffold. The scaffold became
caught on a piece of "rebar," and Tracy bent over with his hammer
to knock the scaffold loose. His foot came out from under him,
and he fell. He thought he tripped on something but he did not
see what it was. Tracy grabbed for the safety cable but when he
saw that it was not attached, let it go. He fell three stories,
sustaining a compound compression fracture of one of his
vertebrae.
Tracy drank a quart of beer at noon on the day of the
accident, and consumed four quarts of beer the night before. His
behavior was aggressive on the morning of the accident, and he
was involved in two altercations at the work site. His
supervisor, who worked with him for two or three minutes moving
the scaffold, testified that he had no reason to believe that
Tracy was intoxicated. Tests performed at the emergency room
showed a blood alcohol level of .2%, which creates a presumption
of intoxication under Code § 65.2-306(B). A pharmacologist who
reviewed the medical records reported that an individual with a
blood alcohol level of .2% would exhibit impairment in reaction
time, depth perception, peripheral vision, stability, balance,
and judgment.
Decisions of the commission as to questions of fact, if
supported by credible evidence, are conclusive and binding on
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this Court. The fact that contrary evidence is in the record is
of no consequence if credible evidence supports the commission's
finding. Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227,
229, 409 S.E.2d 824, 826 (1991); Code § 65.2-706. We must view
the evidence in the light most favorable to the claimant, the
prevailing party below. Id.
The evidence showed that Tracy was intoxicated. The burden
was on the employer to show that intoxication was a proximate
cause of the injury. Wyle v. Professional Services Industries,
12 Va. App. 684, 688-89, 406 S.E.2d 410, 412-13 (1991). The
commission determined that although Tracy was intoxicated, a
preponderance of the evidence did not show that his intoxication
contributed to the accident. It found that the accident was
caused by the debris and the absence of the safety cable, and
dismissed as "speculative" any inference that intoxication caused
Tracy's injury. The commission's determination on questions of
fact are binding on this Court under Code § 65.2-706. We
therefore affirm the award.
Affirmed.
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