Opinion
Record No. 1159-93-4
November 9, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Glenn H. Silver; C. Thomas Brown; Rust, Rust Silver, on brief), for appellant.
(John D. McGavin; Elaina L. Holmes; Lewis, Trichilo, Bancroft McGavin, on brief), for appellees.
Present: Judges Baker, Elder and Fitzpatrick.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Worker's Compensation Commission. Rule 5A:27. As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.
Choon Hag Choe (claimant) contends that the commission erred in finding (1) that his injury did not arise out of and in the course of his employment; (2) that D.H. Kim Enterprises, Inc. (employer) was not estopped from raising intoxication as a defense; and (3) that employer met its burden of proving intoxication as a defense.
In denying claimant's application, the commission held:
We find specifically that the employee, Choe, has not proven persuasively that he resumed his employment status at any time between his loss of consciousness at the Fabulous Feast on the night of July 22, 1991 and the morning of July 23 when he was found in the front seat of the Kim car. Therefore, whenever and wherever his skull fracture occurred, it is not shown by persuasive evidence to have occurred in the course of the employment.
On appellate review, we construe the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). A finding by the commission that an injury did not arise out of and in the course of employment is a mixed finding of law and fact and is properly reviewable on appeal. City of Richmond v. Braxton, 230 Va. 161, 163-64, 335 S.E.2d 259, 261 (1985).
"In order to establish entitlement to compensation benefits, the claimant must prove, by a preponderance of the evidence, an injury by accident which arose out of and in the course of his employment." Classic Floors, Inc. v. Guy, 9 Va. App. 90, 95, 383 S.E.2d 761, 764 (1989) (citation omitted). Unless we can say as a matter of law that claimant met his burden of proof, the commission's findings are binding and conclusive upon us.Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
"'[A]n accident occurs in the 'course of employment' when it takes place within the period of employment, at a place where the employee may be reasonably expected to be, and while he is reasonably fulfilling the duties of his employment or is doing something which is reasonably incidental thereto.'" Thore v. Chesterfield County Bd. of Supervisors, 10 Va. App. 327, 331, 391 S.E.2d 882, 885 (1990) (citations omitted).
However,
[a]n employee may abandon his employment by reaching an advanced state of intoxication which renders the employee incapable of engaging in his duties. . . . This result is not based upon a special statutory defense of intoxication. . . . Rather, a severely intoxicated employee has removed himself from the scope of his employment. Any injuries thereafter suffered are not "in the course of" the employment.
American Safety Razor Co. v. Hunter, 2 Va. App. 258, 261, 343 S.E.2d 461, 463 (1986) (citations omitted).
The commission found claimant's intoxication to be voluntary. This finding is supported by credible evidence. Even after D.H. Kim (president) and Jim Anglemyer (vice-president) were no longer at the restaurant, claimant returned to the restaurant and for several hours continued to "imbibe to the point of insensibility." Claimant admitted that his employer did not require him to continue drinking throughout the night to the point of severe intoxication. In fact, the record establishes that Jim Anglemyer, the vice president, ordered soft drinks and consumed no alcoholic beverages. The president, vice-president and Eric Sohn (senior project manager) testified that if claimant did not want to continue drinking, he was not required to do so as a condition of his employment. The record clearly demonstrates that the choice to continue drinking was claimant's. Moreover, after claimant and the others left the restaurant in Kevin Kim's (project manager) car, claimant was either asleep or passed out, i.e., intoxicated beyond the point of being capable of functioning as an employee. He could not walk without assistance. Thus, the commission's finding that claimant's intoxication was voluntary and that he removed himself from employee status by the time he left the restaurant is supported by credible evidence.
Moreover, the commission's finding that claimant was never able to resume his employment status at any time between his loss of consciousness at the restaurant on the night of July 22, 1991 and the morning of July 23, 1991, when he was found in the front seat of the car, is supported by credible evidence. Substantial credible evidence, including the claimant's testimony and that of the senior project manager and project manager, clearly demonstrates that once claimant left the restaurant he was intoxicated to the point of rendering himself incapable of performing his employment duties. Even if we assume that claimant attempted to climb the stairs to the employer's office, it is not established that he was ever able to resume his employment status.
Accordingly, the commission's finding that claimant's skull fracture did not occur in the course of his employment is supported by credible evidence and will not be disturbed on appeal.
Since our ruling on this issue disposes of this appeal, we decline to address any of the remaining issues raised by claimant. For the reasons stated, we affirm the commission's decision.
Affirmed.