Opinion
Record No. 1040-94-4
Decided: March 7, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Lois Graninger Pearson (Pearson and Pearson, P.C., on briefs), for appellant.
Anisa P. Kelley (Daniel W. Cotter; Cotter, Fiscella McConnell, on briefs), for appellees Culinary Concepts, Inc., d/b/a The Inn at Little Washington, Patrick O'Connell, Reinhardt Lynch, O'Connell/Lynch Partnership, and St. Paul Fire Marine Insurance Company.
Gustave Fritschie for appellees Great Run Builders, Inc., Charles Flory, and Frank J. Culley.
Paul S. Stahl, Assistant Attorney General (James S. Gilmore, III, Attorney General; John J. Beall, Jr., Senior Assistant Attorney General, on briefs), for appellee Uninsured Employer's Fund.
Present: Judges Barrow, Koontz and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Nathaniel Marshall (claimant) appeals a decision of the Virginia Workers' Compensation Commission (commission) denying his claim for disability and medical benefits arising out of an injury sustained in a fall from a roof while assisting in the demolition of a property owned by appellee O'Connell/Lynch Partnership. Claimant asserts that the commission erred (1) in receiving and giving credence to certain evidence; (2) in finding that claimant's voluntary intoxication was a proximate cause of the accident; and (3) in rejecting his assertion that the defense of voluntary intoxication had been waived by his employer. Appellee The Inn at Little Washington (the Inn), pursuant to Rule 5A:21(b), raises the additional issue of whether the commission erred in finding that it was claimant's statutory employer. For the following reasons, we affirm the decision of the commission.
With respect to claimant's challenges to the receipt and credence given to certain evidence, we hold that the evidence was properly admitted and considered under the relaxed standards of pleading and evidence applicable to proceedings before the commission which permit the commission to ". . . 'conduct such hearings . . . in such a manner as . . . to ascertain and determine expeditiously and accurately the substantial rights of the parties . . . .' " U.S. Gypsum Co. v. Searles, 9 Va. App. 488, 490, 389 S.E.2d 177, 178 (1990) (citation omitted). The credibility of that evidence was for the commission to decide. Goodyear Tire Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987).
The commission's finding that claimant's decreased judgment and imbalance due to alcohol consumption and intoxication contributed to his fall is supported by credible evidence and we may not disturb it. Code Sec. 65.2-706(A); see also Wyle v. Professional Services Industries, Inc., 12 Va. App. 684, 689-90, 406 S.E.2d 410, 413 (1991). Similarly, the commission's finding that the evidence failed to establish that claimant's supervisor knew or should have known that claimant was intoxicated thereby waiving the defense of voluntary intoxication is supported by credible evidence in the record. Although contrary evidence appears in the record, we may disregard that evidence where the commission's determination is not clearly wrong. Wagner Enterprises, Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).
In light of our holding affirming the commission's decision with respect to the claim, we do not address the issue raised by the Inn.
For these reasons, the decision of the commission is affirmed.
Affirmed.