COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Russell and Malveaux
UNPUBLISHED
Argued at Richmond, Virginia
ANDERSEN INTERIOR CONTRACTING,
STRUCTURE TONE, INC. AND
ARCH INSURANCE COMPANY
MEMORANDUM OPINION* BY
v. Record No. 1286-16-2 WESLEY G. RUSSELL, JR., JUDGE
FEBRUARY 21, 2017
SAMUEL NIMMO
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Tenley Carroll Seli (Lynch & Cornett, P.C., on brief), for appellants.
Sean P. Kavanagh (Harbison & Kavanagh, PLLC, on brief), for
appellee.
Andersen Interior Contracting, Structure Tone, Inc., and Arch Insurance Company
(collectively “employer”)1 appeal the decision of the Virginia Workers’ Compensation
Commission finding a compensable injury and awarding appellee Samuel Nimmo (“claimant”)
lifetime medical benefits. For the reasons that follow, we affirm the Commission.
BACKGROUND
“On appeal from a decision of the Workers’ Compensation Commission, the evidence
and all reasonable inferences that may be drawn from that evidence are viewed in the light most
favorable to the party prevailing below.” Artis v. Ottenberg’s Bakers, Inc., 45 Va. App. 72, 83,
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Structure Tone was the general contractor for the construction of a Microsoft facility in
Boydton, Virginia. Andersen Interior Contracting was a subcontractor on the project and
obtained workers’ compensation coverage for its employees through Structure Tone’s policy
with Arch Insurance.
608 S.E.2d 512, 517 (2005) (en banc). Accordingly, because he prevailed before the
Commission on the issues pertinent to this appeal, we review the evidence in the light most
favorable to claimant.
Structure Tone was the general contractor and Andersen Interior Contracting served as
one of its subcontractors regarding the construction and finishing of a Microsoft facility in
Boydton, Virginia. At the time of the claimed injury, claimant had been an employee of
employer for three weeks, working Monday through Saturday. His shifts began at 6:30 a.m.
As part of his employment, claimant was required to attend an orientation, during which
employees were informed of applicable workplace policies. The policies included safety rules
related to drug and alcohol use. Specifically, the policies “prohibit[ed] the use, possession or
distribution on its premises, facilities or work places of drugs, drug paraphernalia, alcohol or
intoxicants” and expressly stated that “[w]orkers must not report for duty under the influence of
any other drug, alcoholic beverage, intoxicant or narcotic . . . .” The prohibition was part of a
“Zero Tolerance” policy, which included “drug and alcohol use, possession, or distribution” as
activities that would be subject to “zero tolerance.” To enforce these rules, the policy also
provided that “[s]ubstance abuse screening on this project is required post-accident/post-
incident” and that a violation “may result in immediate removal from the project.”
On May 7, 2015, claimant signed an Employee Orientation Information Sheet, and
initialed the form’s acknowledgment of the drug and alcohol policy, which stated “I
acknowledge that the sale, possession or use of illegal drugs . . . or alcohol during the working
shift, or reporting to work under the influence of illegal drugs or alcohol, is strictly prohibited
and a dischargeable offense.” Investigations were conducted after every accident or “near-miss”
scenario and involved drug and alcohol testing.
-2-
On May 21, 2015, claimant reported to work at his scheduled time of 6:30 a.m. He was
assigned to a “clean room”2 housing electrical equipment, where he was installing acoustical
ceiling tiles. As part of his duties, he was using a ten-foot A-frame ladder. He took his usual
9:00 a.m. break. When he returned, he stopped at a work station where he put on slip covers for
his boots and continued over a protected floor to where he had been working. He returned to
where he had set his ladder, put on his safety harness, and began to climb up the ladder. Once he
reached five or six steps up the ladder, the ladder “skidded or shifted . . . wobbled a little bit and
then . . . hit completely sideways.” The ladder moved before claimant was able to secure his
harness. According to claimant, “[w]hen the ladder kicked[,] it threw my feet sideways and I
come down on the floor.”
Claimant’s fall resulted in injuries to his right wrist and elbow, two fractured ribs, and a
punctured lung. He had no problems using the ladder that morning prior to the incident, and the
ladder was placed on the floor, which claimant noted had no defects, was flat, and was dry.
Claimant admitted to drinking three to six beers and some liquor most nights and to
consuming alcohol the night before the accident. He stated that he drank six or seven beers, but
stopped drinking by 11:00 p.m. or midnight. He denied drinking any alcohol on the morning of
the 21st, but noted that he did have some coffee but nothing to eat. He had taken no medications
or drugs. After falling, claimant was taken to the hospital, and upon release, was taken to an
occupational health center for blood and urine samples. Claimant was not tested on site due to
the severity of his injuries, which required immediate medical care. The test results indicated
2
A “clean room” is a room in which expensive computer equipment is housed.
Accordingly, the construction crews were to take additional steps to keep the room “clean”
during construction because the equipment “do[es] not tolerate any dust, any water, any debris,
any moisture, anything of that sort inside of them.”
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claimant had alcohol in his system at the time of the test. Employer terminated claimant’s
employment later that day.
On June 9, 2015, claimant filed with the Commission a claim for benefits. Specifically,
claimant sought medical benefits for his injuries and continuing temporary total disability
benefits commencing May 22, 2015.
Employer defended the claim, asserting that claimant, because of his intoxication, was
barred from receiving benefits based on his willful misconduct, his violation of a safety rule, and
Code § 65.2-306. Employer further contended that claimant was not entitled to lost wage
benefits from June 10 through July 20, 2015, because he had been terminated for cause.
On November 12, 2015, the parties submitted a pre-hearing statement order regarding the
claim. In it, they agreed to several facts, including claimant’s employment status, that claimant
fell at work and the nature of his resulting injuries, his inability to work from May 22 to June 9,
2015, his return to light-duty capacity on June 10, and his release to full duty on July 20, 2015.
A deputy commissioner conducted a hearing on the matter on November 16, 2015. The
parties’ stipulations were read into the record. The deputy heard testimony from claimant; a
toxicology expert, Dr. Wolfe, retained by the employer; the worksite’s project safety manager;
and a foreman for Andersen’s portion of the project. Additionally, employer submitted a report
from another toxicology expert, Dr. Holstege. The report was before the deputy commissioner
for review and referenced in the deputy commissioner’s opinion. Employer’s orientation
materials and claimant’s medical records from the day of the accident also were entered into
evidence.
The evidence established that claimant had his blood drawn at 3:39 p.m. on May 21st,
approximately six hours after the accident. At that time, “[claimant] had alcohol in his blood at
the time [his] specimen was collected on May 21st, 2015 at . . . 3:39 p.m.” Based on the lab
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report, claimant had a blood alcohol content (BAC) of at least 0.02 at the time his blood was
drawn. Based on evidence provided by employer’s expert toxicologists, the deputy
commissioner concluded that claimant’s BAC at the time of the accident was between 0.09 and
0.17 and that the presumption of Code § 65.2-306(B) applied.3
With claimant’s level of intoxication established, employer focused on how that level of
intoxication would have affected claimant’s abilities. Dr. Wolfe testified that claimant’s level of
intoxication at the time of the accident would have dulled claimant’s senses such as vision,
touch, and perception and would have caused a loss of reasoning ability, self-control, alertness,
reflexes, and reaction time. Dr. Wolfe opined that claimant’s intoxication “impaired his ability
to work safely as a construction worker” and would have rendered him unable to climb a ladder
safely. Dr. Wolfe testified that “I can’t say that [claimant’s intoxication] did cause him to fall
from the ladder, but it was [] a proximate cause to his fall.” He explained that claimant’s
intoxication “potentially could have” contributed to the extent of claimant’s injuries. On
cross-examination, Dr. Wolfe conceded that individuals have varying tolerance levels so that
3
In pertinent part, Code § 65.2-306(B) provides that
if the employer raises as a defense the employee’s intoxication . . .
and there was at the time of the injury an amount of alcohol . . . in
the bodily fluids of the employee which . . . is equal to or greater
than the standard set forth in § 18.2-266, . . . there shall be a
rebuttable presumption . . . that the employee was intoxicated due
to the consumption of alcohol . . . at the time of his injury. The
employee may overcome such a presumption by clear and
convincing evidence.
Here, the deputy commissioner (and later the full Commission) found that claimant’s BAC at the
time of the accident exceeded the standard set forth in Code § 18.2-266 and that claimant had not
rebutted the statutory presumption. Accordingly, based on the presumption, the record
establishes that claimant “was intoxicated due to the consumption of alcohol . . . at the time of
his injury.” Notably, the presumption establishes only that the intoxication was the result of
claimant’s consumption of alcohol; there is no statutory presumption that this level of
intoxication was a proximate cause of claimant’s accident or injuries.
-5-
alcohol affects them differently, and he reiterated that he “couldn’t say if it made him fall off the
ladder or caused him to fall off . . . .”
As a supplement to Dr. Wolfe’s testimony, employer relied on the report from
Dr. Holstege. In addition to opining that claimant was intoxicated at the time of the accident,
Dr. Holstege unequivocally concluded that claimant’s level of intoxication prevented claimant
from being “able to safely climb a ladder” and that claimant’s fall from the ladder was caused by
his intoxication.
Employer’s project safety manager testified to the investigation that followed claimant’s
fall. The area was secured, and the ladder and floors were inspected. Because the area in which
claimant was working was a “clean room,” extra precautions were taken to maintain its
cleanliness, including the use of boot scrapers and covers with traction on the bottom, and
ensuring all tools were clean prior to entry. The safety manager indicated that, based on the
condition of the area after the accident, it was difficult to determine what caused the accident, but
that upon learning of claimant’s blood test results, “it was pretty obvious at that point that the
incident, [claimant’s] fall was caused by the level of intoxication the morning of the incident.”
He stated that it was his first experience with someone falling off a ladder on the job. He
explained that there was some suspicion of alcohol as a factor during the investigation, but that
he did not consider alcohol to be the cause until after the test results had been received. The
manager further testified that claimant subsequently was banned from the project and that his
employment was terminated effective immediately for violating employer’s zero tolerance
policies.
Andersen’s project foreman did not see the fall, but testified that he found claimant on the
floor with the ladder next to him. He examined the area to determine the cause of the accident.
He did not notice anything wrong with the floor; it was not wet. He noted that he had suspicions
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of alcohol use. The foreman testified that, because of employer’s zero tolerance policy, claimant
was terminated immediately after the blood test results were obtained.
The deputy commissioner issued her decision on December 14, 2015. The deputy
commissioner accepted the parties’ stipulations and further found that there was nothing wrong
with the clean room floor and that it was dry. The deputy commissioner noted claimant was
released to light duty on June 10, 2015.
As noted above, the deputy commissioner found that claimant was intoxicated at the time
of the accident and applied the presumption provided for in Code § 65.2-306(B). Nevertheless,
the deputy commissioner noted that, in addition to establishing intoxication, employer had the
burden of proving “that an employee’s intoxication was the actual cause of the injury. The mere
fact that the employee was intoxicated is not sufficient to preclude an award of compensation
benefits.” The deputy commissioner ultimately found that employer did not meet its burden. In
making this determination, the deputy commissioner noted that she found “it significant that no
one from either Andersen or Structure Tone witnessed the claimant’s accident” and that she
“accept[ed] the claimant’s testimony that no one from his employer or the general contractor told
him they thought he was intoxicated.” The deputy commissioner highlighted that there was “no
evidence from any employee or witness that they observed the claimant and noticed . . . [an]
inability to walk or maneuver the ladder in question,” and she “accept[ed] the claimant’s
testimony that he had no problems negotiating the ladder . . . .” In short, the deputy
commissioner concluded that employer had not established that intoxication was a proximate
cause of claimant’s fall and resultant injuries.
The deputy commissioner acknowledged employer’s safety rule and found that claimant
had knowledge of the alcohol policies, but found, based on her factual finding regarding
causation, “that the claimant’s breach of the employer’s policy did not cause his injuries.”
-7-
Although claimant was terminated for his violation of the alcohol policies, the deputy
commissioner “[did] not find that the claimant’s termination rose to the level of justified cause to
forever preclude the claimant from receiving compensation during [his] partial incapacity.”
Based on her findings, the deputy commissioner awarded claimant a lifetime medical award for
his right wrist and elbow, ribs, and punctured lung; temporary total disability benefits from May
22, 2015 through June 9, 2015, when he was totally disabled; and temporary partial disability
benefits from June 10, 2015 through July 20, 2015, when he was in a light-duty status without
work.
On December 16, 2015, employer filed a request for review by the full Commission. On
July 6, 2016, the Commission issued its decision, affirming in part and reversing in part the
decision of the deputy commissioner. Regarding the proceedings before the deputy
commissioner, the Commission “incorporate[d] by reference and adopt[ed] the Deputy
Commissioner’s summary of the evidence and testimony as [its] own.”
Based on those factual findings, the Commission agreed that claimant’s lifetime medical
benefits and temporary total disability benefits from May 22, 2015 through June 9, 2015, were
not barred by claimant’s intoxication/willful violation of a safety rule because employer failed to
prove that claimant’s intoxication was a cause of the accident.4 In explaining its decision
regarding intoxication, the Commission cited to educational materials produced by Clemson
University that state that alcohol is lethal when a person’s BAC is between 0.40 and 0.50.
Regarding causation, the Commission noted that falls from ladders are common in the workplace
4
One commissioner dissented, concluding that he would have reversed the award of
medical benefits as well as the disability payments. He concluded, “[f]rom this record, I find no
credible explanation for the claimant’s accident other than that it was the direct result of his
inebriated state.” The dissenting commissioner emphasized the lack of any other causal
elements, i.e., that there were no defects in the ladder or floor and that “claimant offered no
insight as to why the ladder would have” “spontaneously ‘skidded,’ ‘shifted,’ ‘wobbled,’ went
completely sideways,’ and ultimately kicked out from under him, thus causing his fall.”
-8-
and occur in the absence of intoxication, citing regulations of the Occupational Safety and Health
Administration, data compiled by the Centers for Disease Control and Prevention, National
Institute for Occupational Safety and Health (NIOSH), and our decision in Basement
Waterproofing & Drainage v. Beland, 43 Va. App. 352, 597 S.E.2d 286 (2004).
Having affirmed the deputy commissioner’s decision regarding these benefits, the
Commission reversed the award to claimant of “temporary total and temporary partial disability
benefits awarded by the Deputy Commissioner from June 10, 2015 through July 20, 2015.”
Specifically, the Commission found that employer legitimately terminated claimant for his
wrongful act, and therefore, he was not entitled to continued wage benefits during the period of
his partial disability.
Employer noted its appeal of the Commission’s determination of compensability and
award of medical benefits. On appeal, employer presents the following assignments of error:
1. The Commission erred, as a matter of fact and law, in holding
that credible evidence proved that the claimant’s intoxication at
work on May 21, 2015 was not the proximate cause of his fall.
2. The Commission erred, as a matter of fact and law, in holding
the claimant’s intoxication at work on May 21, 2015 did not bar
him from receiving benefits under the Act pursuant to
Va. Code § 65.2-306(A)(3).
3. The Commission erred, as a matter of fact and law, in holding
that the claimant’s intoxication at work on May 21, 2015 did not
bar him from receiving benefits under the Act pursuant to
Va. Code § 65.2-306(A)(5) due to his willful breach of a
reasonable safety rule adopted by the employer and brought to his
knowledge prior to the accident.
4. The Commission impermissibly relied upon statistics and
information not entered into evidence at hearing and not
reasonably inferred from the evidence submitted into the record in
reaching its decisions on causation in the Opinion of July 6, 2016.
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ANALYSIS
It is well settled that “we are bound by the [C]ommission’s findings of fact as long as
‘there was credible evidence presented such that a reasonable mind could conclude that the fact
in issue was proved,’ even if there is evidence in the record that would support a contrary
finding.” Artis, 45 Va. App. at 83-84, 608 S.E.2d at 517 (quoting Westmoreland Coal Co. v.
Campbell, 7 Va. App. 217, 222, 372 S.E.2d 411, 415 (1988)). “The scope of a judicial review of
the fact finding function of [the C]ommission is [] ‘severely limited . . . .’” Georgia-Pacific
Corp. v. Robinson, 32 Va. App. 1, 5, 526 S.E.2d 267, 268 (2000) (quoting Metropolitan
Cleaning Corp. v. Crawley, 14 Va. App. 261, 266, 416 S.E.2d 35, 38 (1992)). Even if we would
have decided a factual issue differently, “we will not substitute our judgment for that of the trier
of fact.” Boys & Girls Club of Va. v. Marshall, 37 Va. App. 83, 90, 554 S.E.2d 104, 107 (2001)
(quoting Goodyear Tire & Rubber Co. v. Harris, 35 Va. App. 162, 171, 543 S.E.2d 619, 623
(2001)); see also Code § 65.2-706 (“The award of the Commission . . . shall be conclusive and
binding as to all questions of fact.”). We may set aside a factual finding of the Commission only
if it is “plainly wrong or without evidence to support” it. Owens v. York Fire & Rescue, 38
Va. App. 354, 359, 564 S.E.2d 150, 152 (2002).
I. Intoxication as a Proximate Cause
Employer’s first three assignments of error all turn on the same issue: the Commission’s
determination that the evidence did not establish “that intoxication . . . caused the claimant’s fall
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and injuries on May 21, 2015.” Thus, the three assignments of error challenge a finding of the
Commission on a question of causation.5
As such, employer challenges a factual conclusion of the Commission. Ivey v. Jerry J.
Puckett Constr. Co., 230 Va. 486, 488, 338 S.E.2d 640, 641 (1986) (holding that whether
intoxication is a proximate cause of a work accident is a question of fact). As noted above, we
are bound by such a conclusion unless it is “plainly wrong or without evidence to support” it.
Owens, 38 Va. App. at 359, 564 S.E.2d at 152.
A. Causation Generally
Initially, the burden is on a claimant to prove how an accident occurred and that the
accident proximately caused his injuries. Liberty Mut. Ins. Corp. v. Herndon, 59 Va. App. 544,
555-56, 721 S.E.2d 32, 38 (2012) (citing Southland Corp. v. Parson, 1 Va. App. 281, 283-84,
338 S.E.2d 162, 163 (1985)); see also PYA/Monarch & Reliance Ins. Co. v. Harris, 22 Va. App.
215, 224-25, 468 S.E.2d 688, 692 (1996).
Here, the Commission considered claimant’s testimony, the testimony of the other
witnesses, and drew permissible inferences under our decision in Beland, 43 Va. App. at 360,
597 S.E.2d at 290 (“Ladders, in and of themselves, are dangerous, and accidents involving
ladders cannot be properly evaluated without taking into consideration the increased risk.”).
Based on all of this, the Commission concluded that the evidence established that claimant had
5
Employer’s first assignment of error is framed in the negative: “[t]he Commission erred
. . . in holding that credible evidence proved that the claimant’s intoxication . . . was not the
proximate cause of his fall.” This formulation indicates a misunderstanding of intoxication as an
affirmative defense. As will be discussed more fully below, it was not claimant’s burden to
show that intoxication was not a proximate cause of his fall; it was employer’s burden to
establish that claimant was intoxicated and that the intoxication caused the accident and resultant
injuries.
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suffered an injury by accident arising out of and in the course of his employment.6 Thus, absent
some bar to recovery, claimant has established an injury by accident entitling him to benefits.
B. Employer’s Statutory Defenses
With the workplace accident established, employer sought to avoid liability by invoking
statutory defenses available under Code § 65.2-306(A). Code § 65.2-306(A) provides, in
pertinent part, that “[n]o compensation shall be awarded to the employee . . . for an injury or
death caused by: . . . [t]he employee’s intoxication . . . [or] [t]he employee’s willful breach of
any reasonable rule or regulation adopted by the employer and brought, prior to the accident, to
the knowledge of the employee . . . .” (Emphasis added). Because the defenses found in
Code § 65.2-306(A) are affirmative defenses, employer bears the burden of proof regarding
them. See Code § 65.2-306(B) (“The person or entity asserting any of the defenses in this
section shall have the burden of proof with respect thereto.”); Layne v. Crist Elec. Contr., Inc.,
64 Va. App. 342, 349, 768 S.E.2d 261, 264 (2015).
Here, the Commission found that employer had proven that claimant was intoxicated at
work, that employer had a safety rule, known by the employee, prohibiting employees from
being at work while under the influence of alcohol, and that claimant willfully violated that
safety rule. All of these findings were supported by credible evidence in the record, and
therefore, are binding on appeal. Artis, 45 Va. App. at 83-84, 608 S.E.2d at 517.
These factual findings, while necessary to establish the affirmative defenses provided for
in Code § 65.2-306(A)(3) & (5), are not sufficient to entitle employer to the bar the statutory
6
At oral argument, employer conceded that, under Beland, proof of a fall from a ladder
provides a sufficient basis for the Commission to infer that a claim is compensable unless the
claim is otherwise barred.
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defenses potentially provide.7 Under the plain language of Code § 65.2-306(A), employer had to
establish that the intoxication/willful violation of the safety rule “caused” claimant’s injuries—in
this case that his intoxication was a proximate cause of his fall from the ladder. See Am. Safety
Razor Co. v. Hunter, 2 Va. App. 258, 263-64, 343 S.E.2d 461, 464 (1986) (“Proving
intoxication, however, was but a first step in establishing the affirmative defense [of
intoxication]. The employer must also prove that this intoxication proximately caused
[claimant’s] injury.” (emphasis added)); Owens Brockway & Nat’l Union Fire Ins. Co. v. Easter,
20 Va. App. 268, 271, 456 S.E.2d 159, 161 (1995) (holding that, for the bar of Code
§ 65.2-306(A)(5) to apply, an employer “ha[s] the burden to prove that claimant’s conduct,
which caused his injury, was in ‘willful’ disregard of a reasonable rule established by employer
of which claimant was knowledgeable” (emphasis added)).
Here, the Commission concluded that employer failed to carry its burden on causation.
As the trier of fact, the Commission was entitled to weigh all of the evidence, including
claimant’s testimony, the experts relied upon by employer, the testimony of the project’s safety
manager and the Andersen project foreman, the inherent risks posed by ladders, and the fact that
claimant had performed his job on the ladder successfully for some period of time before his fall.
In performing this function, the Commission found that claimant’s fall was caused by the
inherent dangers posed by working on ladders, concluding that employer “did not prove by a
preponderance of the direct and circumstantial evidence that intoxication or violation of the
employer’s safety rule caused the claimant’s fall and injuries on May 21, 2015.” Because there
7
Code § 65.2-306(A)(1) provides that “[n]o compensation shall be awarded to the
employee . . . for an injury . . . caused by . . . [t]he employee’s willful misconduct . . . .”
Although employer references claimant’s activities as representing “willful misconduct,”
employer does not cite to Code § 65.2-306(A)(1) in the opening brief. Regardless of whether
claimant’s conduct is framed as a violation of Code § 65.2-306(A)(1) or of other subsections of
Code § 65.2-306(A), the outcome is the same.
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is evidence in the record that would allow a rational factfinder to reach such a conclusion, the
Commission’s determination is binding on appeal.
Employer argues that credible evidence, i.e., the expert opinions of Drs. Wolfe and
Holstege, established that claimant’s fall was proximately caused by his intoxication. Employer
reasons that Dr. Holstege’s unequivocal opinion that claimant’s fall from the ladder was caused
by his intoxication satisfied the employer’s burden of proof, and thus, required the Commission
to find that the statutory defenses had been established.
This misunderstands the burden of proof and the requirements faced by a party bearing
that burden.
“The phrase ‘burden of proof’ refers to two related but distinct
concepts: (1) The ‘burden of production,’ which is the obligation
to come forward with evidence to make a prima facie case . . ., and
(2) the ‘burden of persuasion,’ which is the obligation to introduce
evidence that actually persuades the fact finder to the requisite
degree of belief that a particular proposition of fact is true.”
SunTrust Bank v. PS Bus. Parks, L.P., ___ Va. ___, ___, 791 S.E.2d 571, 575 (2016) (quoting
Charles E. Friend & Kent Sinclair, The Law of Evidence in Virginia § 5-1[a], at 298 (7th ed.
2012) (emphasis added)).
There is no question that employer’s evidence satisfied the burden of production. The
expert evidence was more than sufficient to allow the Commission to conclude that claimant’s fall
was caused by his intoxication. In fact, at oral argument, claimant conceded that if accepted and
believed by the Commission, employer’s evidence would support a conclusion that his fall was
caused by his intoxication.
However, recognizing that the evidence was sufficient to allow the Commission to reach
such a conclusion is not the same thing as concluding that the evidence required the Commission to
reach that conclusion. Expert opinions are not, by themselves, binding on the Commission;
rather, like other evidence, they are entitled to the weight the Commission chooses to give them
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after due consideration. Great N. Nekoosa Corp. v. Wood, 37 Va. App. 54, 63, 553 S.E.2d 555,
559 (2001) (citing Georgia-Pacific Corp. v. Dancy, 24 Va. App. 430, 439, 482 S.E.2d 867, 871
(1997)). The Commission’s opinion makes clear that it remained unconvinced that claimant’s
intoxication, as opposed to the inherent risks posed by ladders in the workplace, proximately caused
the fall. That employer can point to evidence in the record that supports the conclusion it wished
the Commission had drawn does not change the calculus. Dollar Gen. Store v. Cridlin, 22 Va. App.
171, 177, 468 S.E.2d 152, 155 (1996) (“The fact that contrary evidence may appear in the record ‘is
of no consequence if there is credible evidence to support the [C]ommission’s finding.’” (quoting
Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991))). Simply put, it
was employer’s burden to convince the Commission that the claimant’s fall from the ladder was
proximately caused by his intoxication, and employer failed to do so.
II. Commission’s References to the Code of Federal Regulations and
Educational Information Maintained by a University
In its final assignment of error, employer argues that the Commission “impermissibly
relied upon statistics and information not entered into evidence at hearing and not reasonably
inferred from the evidence submitted into the record in reaching its decisions on causation.”
Specifically, employer argues it was error for the Commission to cite in its opinion OSHA8
regulations regarding the safety of ladders and educational materials from Clemson University
regarding the range of BAC’s that generally is considered lethal.9 We disagree.
8
OSHA is the Occupational Safety and Health Administration of the federal government.
On brief, employer misidentifies the agency as “Federal Occupational and Health Safety
Administration.”
9
On brief, employer does not challenge the Commission’s citation to information
produced by the Centers for Disease Control and Prevention, National Institute for Occupational
Safety and Health. Because employer does not challenge this citation by the Commission, it has
effectively conceded that the Commission’s citation to this material was proper.
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It is not unusual for courts (or the Commission) to reference non-evidentiary materials to
assist in explaining a decision. See, e.g., Samartino v. Fairfax County Fire & Rescue, 64
Va. App. 499, 511, 769 S.E.2d 692, 698 (2015) (citing to Webster’s Third International
Dictionary); Women’s Healthcare Assocs. v. Mucci, 64 Va. App. 420, 436, 768 S.E.2d 720, 728
(2015) (citing to Taber’s Cyclopedic Medical Dictionary). This especially is true in the
Commission where technical rules or practice and procedure are relaxed. See Rules of the
Workers’ Compensation Commission, Rule 2.2 (“Except for rules which the Commission
promulgates, it is not bound by statutory or common law rules of pleading or evidence nor by
technical rules of practice.” (emphasis added)). On multiple occasions, the Supreme Court has
rejected similar challenges to the Commission’s consultation of and citation to materials that
were not entered into evidence, recognizing that the
Commission is not governed in its decisions by common law rules
of evidence, and we have held that hearsay statements are properly
admissible in evidence before it. The Commission has the
discretion to give probative weight to hearsay statements in
arriving at its finding of facts. It is the sole tribunal provided to
ascertain the facts in cases of this character, and it is not for us to
determine the weight of the evidence. . . . Under the broad
provisions of the Workmen’s Compensation Act, it is authorized to
consult medical treatises.
Williams v. Fuqua, 199 Va. 709, 714, 101 S.E.2d 562, 566 (1958) (citations omitted); see also
Liberty Mut. Ins. Co. v. Money, 174 Va. 50, 57, 4 S.E.2d 739, 742 (1939) (approving
Commission’s reliance on a treatise not admitted into evidence).
Furthermore, we note that the Commission’s citation to OSHA regulations is, in effect,
nothing more than a citation to and a recognition of federal law. The cited regulations are part of
the Code of Federal Regulations and thus were required by law to be published in both the
Federal Register and the Code of Federal Regulations. See Federal Register Act, 44
U.S.C. § 1501 et seq. The Commission’s citation to regulations published by the federal
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government simply was not error. Cf. Code § 8.01-388 (providing that courts “shall take judicial
notice of the contents of all official publications . . . of the United States, of other countries, and
of the political subdivisions and agencies of each published within those jurisdictions pursuant to
the laws thereof”).
Even if it had been error to cite to federal regulations, such error is harmless beyond any
doubt. Code § 8.01-678; K & G Abatement Co. v. Keil, 38 Va. App. 744, 754-55, 568 S.E.2d
416, 421 (2002) (applying harmless error review to a decision of the Commission). The
regulations were cited for the unremarkable proposition that ladders are inherently dangerous and
that workers fall off ladders in the workplace. The Commission could, and did, cite other
sources for the same point. Specifically, the Commission cited both our decision in Beland and
information produced by the Centers for Disease Control and Prevention, National Institute for
Occupational Safety and Health, neither of which employer challenges on appeal. Because the
OSHA regulations, at most, merely reinforced information that already was before the
Commission, we can say with complete confidence that the Commission would have reached the
same conclusion even if it had not cited to the regulations.
Similarly, even if we assume that the citation to educational information regarding the
BAC levels where death normally occurs is sufficiently different from the citations that the
Supreme Court approved in Williams and Money as to constitute error, any such error was
harmless. Information about BACs generally and what was claimant’s BAC was material to
establishing that, at the time of the accident: (1) claimant was intoxicated and (2) his level of
intoxication at the time of the accident was sufficient to trigger the presumption found in Code
§ 65.-306(B) that claimant’s intoxication “was . . . due to the consumption of alcohol . . . .”10
10
Again, there is no statutory presumption that any particular level of intoxication proves
that an accident or injury was caused by a claimant’s intoxication.
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Applying that information, the Commission agreed with employer, finding that claimant
was intoxicated at the time of the accident and that the presumption of Code § 65.2-306(B)
applied. The Commission even adopted the BAC level proposed by employer’s expert,
Dr. Wolfe. In short, nothing about the educational information cited by the Commission caused
it to disagree with any of employer’s evidence about BAC levels.
Rather, having accepted all of employer’s evidence regarding claimant’s intoxication at
the time of the accident, the Commission concluded that employer failed in another respect:
proving that intoxication was a proximate cause of the fall. Whether or not death occurs at a
BAC of 0.40 to 0.50 or some different level sheds no light on the causation question here.
Accordingly, the Commission’s citation to an educational website on lethal BAC levels is, at
most, harmless error.
CONCLUSION
For the reasons stated, the judgment of the Commission is affirmed.
Affirmed.
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Andersen Interior Contracting, Structure Tone, Inc. and Arch Insurance Company v. Samuel Nimmo
Combined Opinion