Opinion
Record No. 1716-94-2
Decided: April 18, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Ralph L. Whitt, Jr. (Jennifer G. Marwitz; Sands, Anderson, Marks Miller, on briefs), for appellants.
B. Mayes Marks, Jr. (Marks Lee, on brief), for appellee.
Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this appeal from the Workers' Compensation Commission, the appellant, Ball Lumber Company, Inc., contends that the commission erred by finding the complainant's testimony concerning the accident credible and by finding that the evidence failed to prove that the complainant was intoxicated at the time of the accident. For the following reasons, we affirm the commission's decisions.
Douglas Jones operated a forklift for Ball Lumber Company. On the day of the accident, Jones began work at 7:30 a.m. Throughout the morning, he performed various complicated tasks with his forklift. After lunch, Jones continued his duties. While standing on top of his forklift to unload it, the lift began to roll backward. Jones testified that the lift was in neutral. Jones jumped off the forklift and broke his leg. Then, in an attempt to get the lift to stop, Jones tried to put the lift in gear. The lift then ran over his right leg. With one leg broken and the other leg injured, Jones began to chase after the lift, but, by the time he reached it, it had already stopped. He was transported to a local hospital.
At the commission hearing, Mr. Jones's medical reports showed that his blood alcohol content was .18 when the blood sample was taken at the hospital. The employer's expert witness testified that based on Jones's blood alcohol level at the hospital, in his opinion, Jones would have had a blood alcohol level of .20 at the time of the accident. Jones testified that he was not intoxicated at the time of the accident. Jones also testified that while waiting in the emergency room for treatment, his friend brought him a one-half pint bottle of gin. Jones said he drank the gin before seeing a doctor. He admitted to having had a chronic drinking problem for at least twenty years.
The employer contends that Jones's testimony as to how the accident occurred is inherently incredible. Thus, because the account is not believable, the employee has failed to prove his injury was employment related.
Findings of fact supported by credible evidence will not be disturbed on appeal. Dep't of State Police v. Dean, 16 Va. App. 254, 257, 430 S.E.2d 550, 551 (1993). "As the fact finder, the commission is charged with the responsibility of resolving questions of credibility and of controverted facts." Virginia Employment Commission v. Gantt, 7 Va. App. 631, 635, 376 S.E.2d 808, 811, aff'd en banc, 9 Va. App. 225, 385 S.E.2d 247 (1989). See also Bell Atlantic Network Services v. Virginia Employment Commission, 16 Va. App. 741, 745, 433 S.E.2d 30, 32 (1993).
The employer contends that the commission based its decision on "gross speculation" and exceeded the dictates of Massie v. Firmstone, 134 Va. 450, 114 S.E. 652 (1922). We hold that the evidence supports the commission's finding that the employee's injury was caused by a work-related accident. The claimant's testimony and account of how the accident occurred were consistent with his earlier accounts of how the accidental injury occurred. The fact that the claimant's account of the accident may contain aspects which are not reasonable or plausible does not require that the commission reject the basic account of the accident which is supported by the evidence. Thus, although the claimant's explanation may not be plausible that the forklift began moving after he disengaged the gear and placed it in neutral, nevertheless, the commission was not required to disbelieve that he was injured when he jumped from the forklift while performing his work. The commission did not err, as a matter of law, by crediting the claimant's account that he jumped from the forklift when it began moving, regardless of the reason. The rule of Massie v. Firmstone does not require that every detail of a litigant's account of the subject event must be plausible or credible in order to support a compensable claim. As long as the claimant's theory of the case is supported by credible evidence, then immaterial facts or implausible or inconsistent evidence concerning facts that are not essential to a recovery do not fall within the Massie v. Firmstone doctrine to defeat a claim.
The employer next contends that the commission erred by finding that the evidence failed to prove that the claimant was intoxicated at the time of the accident. On appeal, we view the evidence in the light most favorable to the prevailing party below. Crisp v. Brown's Tyson's Corner Dodge, Inc., 1 Va. App. 503, 504-05, 339 S.E.2d 916, 916 (1986). Findings of fact made by the commission are binding on appeal if they are supported by credible evidence. Christiansen v. Metro Building Supply, 18 Va. App. 721, 723, 447 S.E.2d 519, 520 (1994). "The fact that contrary evidence may be found 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). For the employer to prevail on this issue, it must show that the evidence proved, as a matter of law, the claimant was intoxicated at the time of the accident. See Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). The employer had the burden to prove that the claimant was barred from recovering due to his voluntary intoxication. See Code Sec. 65.2-306; see also American Safety Razor Co. v. Hunter, 2 Va. App. 263, 343 S.E.2d 461 (1986). It is not sufficient for the employer to show that the evidence may have preponderated in favor of the employer because the weight and credibility to be given that evidence is solely within the province of the commission as fact finder. Gantt, 7 Va. App. at 535, 376 S.E.2d at 811.
We cannot say that the evidence proved, as a matter of law, that the claimant was voluntarily intoxicated at the time of the accident. Moreover, credible evidence exists in the record to support the commission's finding that the evidence failed to prove that the claimant was intoxicated at the time of the accident. As the commission stated:
the uncontradicted evidence establishes that the claimant performed his work operations for approximately six hours without incident, activities which required significant hand-eye coordination and dexterity. He also communicated with co-workers and supervisors in an appropriate manner and they discerned no impairment, even upon reflection. We also note that the claimant's tally sheet entries that date are neat and legible.
Although the toxicologist's opinion was that the claimant had a blood alcohol content of .20 and was intoxicated at the time of the accident, that evidence could be found to be contrary to the evidence of those who observed the claimant, his condition, his activities, and his work during the course of the morning. The toxicologist's extrapolation of the claimant's blood alcohol level at an earlier time was based on variables which are not clear from the record, and the opinion is not binding and conclusive upon the fact finder. See Manasses Ice Fuel Co., 13 Va. App. at 229-30, 409 S.E.2d at 826; see also Russell Loungewear v. Gray, 2 Va. App. 90, 95, 341 S.E.2d 824, 826 (1986). "The testimony of expert witnesses is not exclusive, and does not necessarily destroy the force or credibility of other testimony. The [fact finder] has a right to weigh the testimony of all the witnesses, experts and otherwise." Bell Atlantic Network Services, 16 Va. App. at 745-46, 433 S.E.2d at 33 (quoting Pepsi Cola v. McCullers, 189 Va. 89, 99, 52 S.E.2d 257, 261 (1949).
We therefore affirm the decisions of the commission.
Affirmed.