Freddie J. Fleming v. Snap Cont'g and Twin City Ins ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
FREDDIE JODUAN FLEMING
MEMORANDUM OPINION *
v. Record No. 1017-97-1 PER CURIAM
SEPTEMBER 9, 1997
SNAP CONTRACTING CORPORATION
AND
TWIN CITY FIRE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Freddie Joduan Fleming, pro se, on brief).
(Amy Moss Levy; Willcox & Savage, on brief),
for appellees.
Freddie Joduan Fleming (claimant) contends that the Workers'
Compensation Commission (commission) erred in finding that his
claim for workers' compensation benefits was barred by his use of
a non-prescribed controlled substance pursuant to Code
§ 65.2-306(A)(6). 1 Upon reviewing the record and the briefs of
the parties, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision. Rule
5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
Because claimant did not argue before the commission that
the application of Code § 65.2-306(A)(6) to his claim denied him
due process of law, we will not address this argument on appeal.
See Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 192, 355
S.E.2d 347, 349 (1987); Rule 5A:18.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. See James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
On May 21, 1996, claimant, who worked for employer as a
carpenter, was making holes in a brick wall for a ventilation
duct along with a co-worker, Rodney Wapples. Claimant and
Wapples disassembled scaffolding on the porch, and then moved it
inside and re-assembled it. When they re-assembled the
scaffolding, a wing nut, which held the hand rail, was not
attached. When claimant climbed the scaffolding, the hand rail
came off, causing him to slip and fall onto the concrete floor.
Claimant injured his head and shoulder. Wapples testified that
claimant failed to put the wing nut on the rail.
Immediately after the accident, claimant tested positive for
marijuana pursuant to a National Institute on Drug Abuse (NIDA)
certified laboratory test. Claimant contended that he had not
used marijuana on the job, but that he had been to a party on
May 19, 1996, where other people smoked marijuana.
Code § 65.2-306(A)(6) bars compensation for an injury or
death caused by the employee's use of a non-prescribed controlled
substance, such as marijuana. If there is evidence of a positive
NIDA certified drug test, Code § 65.2-306(B) provides a
rebuttable presumption that the employee was using a
non-prescribed controlled substance at the time of his injuries.
2
In denying the claimant's application, the commission found
as follows:
We find that the evidence supports the
finding that the claimant's drug test fairly
and accurately recorded the presence of
marijuana in his system. Section 65.2-306(B)
allows a rebuttable presumption of
intoxication under such circumstances, and we
find that this presumption has not been
rebutted. The evidence also supports the
Deputy Commissioner's finding that the
claimant's intoxication contributed to the
accident. The fact that the claimant did not
attach the wing nut, which was present and
was discovered after the accident, and
nevertheless climbed up the scaffolding
holding onto the railing, indicates that an
impaired judgment was the cause of the
accident.
The positive drug test supports the commission's finding
that employer's evidence triggered the rebuttable presumption
contained in Code § 65.2-306(B). As fact finder, the commission
was entitled to reject appellant's testimony that he had not
smoked marijuana, but had attended a party where others had
smoked the drug. It is well settled that credibility
determinations are within the fact finder's exclusive purview.
See Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 381,
363 S.E.2d 433, 437 (1987). Furthermore, based upon Wapples'
testimony and the circumstances of the accident, the commission
could reasonably infer that claimant's use of marijuana
proximately caused his injuries. "Where reasonable inferences
may be drawn from the evidence in support of the commission's
factual findings, they will not be disturbed by this Court on
3
appeal." Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404,
374 S.E.2d 695, 698 (1988). Based upon this record, the
commission did not err in finding that claimant failed to rebut
the presumption contained in Code § 65.2-306(B).
Accordingly, we affirm the commission's decision.
Affirmed.
4