                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Humphreys and Powell
Argued at Richmond, Virginia


JASPER FREEMAN McMICHAEL
                                                             MEMORANDUM OPINION * BY
v.     Record No. 0426-08-2                                    JUDGE CLEO E. POWELL
                                                                 DECEMBER 23, 2008
M.M. WRIGHT, INC. AND VIRGINIA FORESTRY
 SAFETY GROUP SELF-INSURANCE ASSOCIATION/
 PMA MANAGEMENT CORPORATION


              FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 Jasper Freeman McMichael, pro se.

                 Angela F. Gibbs (Richard S. Sperbeck; Midkiff, Muncie & Ross,
                 on brief), for appellees.


       Jasper Freeman McMichael (“McMichael”) appeals a decision of the Virginia Workers’

Compensation Commission (“commission”) denying him benefits for a leg injury he incurred

during a fight with his supervisor. McMichael contends that his former employer, M.M. Wright,

Inc. (“M.M. Wright”), failed to prove his injury was the result of his intoxication. McMichael

further contends that the commission erroneously determined that he was the aggressor in the

fight. For the reasons that follow, we hold that the commission did not err and, therefore, affirm

the denial of benefits.

                                        I. BACKGROUND

       “On appeal, we view the evidence and all reasonable inferences that may be drawn from

that evidence in the light most favorable to the party prevailing below.” Stillwell v. Lewis Tree



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Service, Inc., 47 Va. App. 471, 474, 624 S.E.2d 681, 682 (2006). So viewed, the evidence in this

case establishes the following.

        McMichael worked for M.M. Wright as a skidder operator. On October 23, 2006, at

approximately 7:00 a.m., McMichael approached his supervisor, Junior Drummond

(“Drummond”). McMichael was agitated with the type of work that Drummond wanted him to

do. Drummond told McMichael that he should complain to Drummond’s supervisor.

        In response, McMichael threw his hands up and scratched Drummond’s right cheek.

McMichael then grabbed Drummond’s left leg, forcing Drummond to grab McMichael’s head in

order to maintain his balance. Drummond realized that McMichael would not release his leg, so

Drummond “dropped [his] weight on [McMichael].” This knocked McMichael off-balance,

causing him to fall to the ground. As he fell, his leg went into a stump hole, causing it to break.

        Jesse Walker (“Walker”), a co-worker, then approached McMichael. Walker testified

that he could smell alcohol on McMichael’s breath. Walker and Phillip Basham (“Basham”),

another co-worker, both testified that McMichael was acting strangely prior to the fight. Basham

further described McMichael as “acting kind of wild and didn’t want to listen.”

        McMichael was taken to the John Randolph Medical Center for emergency treatment.

He told medical staff that he had a fight with his supervisor, and his supervisor had twisted his

left leg, causing it to break. Dr. Manjit S. Dhillon, the admitting doctor, diagnosed McMichael

with a fractured left tibia and fibula.

        In his notes, Dr. Dhillon noted that McMichael was “alert and awake, somewhat drowsy

secondary to alcohol.” Additionally, a toxicology report showed the presence of alcohol




                                                -2-
and opiates 1 in McMichael’s urine. When asked the last time he had had any alcohol,

McMichael claimed he had not had any alcohol since 4:00 p.m. the day before.

        By opinion dated July 20, 2007, the deputy commissioner held that the evidence failed to

prove that McMichael’s alcohol consumption was the proximate cause of the accident or that

McMichael was the aggressor in the altercation. She awarded McMichael medical benefits for

his left leg injury and temporary total disability benefits from October 23, 2006 to March 22,

2007.

        Employer appealed to the full commission. In an opinion dated January 15, 2008, the

commission reversed the award of benefits. The commission reasoned that, because the

evidence showed that McMichael was under the influence of alcohol, his testimony was not

credible. Accordingly, the commission found that Drummond’s version of events was more

probable. Thus, McMichael failed to carry his burden of proving that he was not the aggressor in

the fight. McMichael appealed the commission’s decision to this Court.

                                         II. ANALYSIS

                                         A. Intoxication

        McMichael contends that the commission erred in determining that the employer had met

its burden of establishing that McMichael’s injury was the result of his intoxication. “To

establish an affirmative defense, an employer must prove by a preponderance of the evidence

that intoxication proximately caused [McMichael’s] injury.” Wyle v. Professional Services

Industries, Inc., 12 Va. App. 684, 688, 406 S.E.2d 410, 412 (1991) (citing American Safety

Razor Co. v. Hunter, 2 Va. App. 258, 262, 343 S.E.2d 461, 464 (1986)). In this case, however,


        1
         Although employer argues that the presence of opiates further demonstrates
McMichael’s level of intoxication, a review of McMichael’s medical records indicates that he
received at least one injection of morphine prior to the collection of the urine sample, thus
accounting for the presence of opiates in his system.

                                               -3-
the commission did not determine that McMichael’s injury was the result of his intoxication;

rather, the commission determined that McMichael’s intoxication made his version of events less

credible than that of other witnesses. Specifically, the commission found:

               The level of intoxication is unknown; however, the evidence shows
               that the physicians noticed it at the hospital that day after he
               claimed to have last consumed alcohol, and his ride to work
               noticed the smell of alcohol the morning after he allegedly last
               consumed alcohol. The claimant was under the influence of
               alcohol to a level that required treatment at the hospital late the
               next day; accordingly, we do not give weight to his version of
               events.

       “‘Decisions of the commission as to questions of fact, if supported by credible evidence,

are conclusive and binding on this Court.’” Basement Waterproofing & Drainage v. Beland, 43

Va. App. 352, 358, 597 S.E.2d 286, 289 (2004) (quoting WLR Foods, Inc. v. Cardosa, 26

Va. App. 220, 230, 494 S.E.2d 147, 152 (1997)). “‘The commission, like any other fact finder,

may consider both direct and circumstantial evidence in its disposition of a claim. Thus, the

commission may properly consider all factual evidence, from whatever source, in its decision

whether or not a condition of the workplace caused the injury.’” Id. (quoting VFP, Inc. v.

Shepherd, 39 Va. App. 289, 293, 572 S.E.2d 510, 512 (2002)).

       Nowhere in its decision did the commission state that McMichael’s injury was the result

of his intoxication; rather the commission very plainly stated that it was discounting

McMichael’s version of events due to his intoxication.

                                          B. Aggressor

               [W]here a claimant has been injured while fighting with a
               co-worker, that injury “arises out of” the claimant’s employment
               only if two elements are satisfied: (1) the fight was not personal,
               but rather, was related to the manner of conducting business, and
               (2) the claimant was not responsible for the fight. Where the
               alleged injury is incurred during a fight with a co-worker, then, the
               claimant must affirmatively prove both elements in order to
               establish the requisite causal connection between the injury and the
               employment.
                                               -4-
Stillwell, 47 Va. App. at 481-82, 624 S.E.2d at 685 (citing Farmers Manufacturing Co. v. Warfel,

144 Va. 98, 104, 131 S.E. 240, 241 (1926)).

        Although the commission made no finding regarding the first element, the record is clear

that the initial confrontation between McMichael and Drummond resulted from McMichael’s

disagreement with the type of work Drummond wanted him to do. As such, appellant has

satisfied the first element.

        Appellant cannot, however, satisfy the second element. Once the commission discounted

McMichael’s version of events, the only remaining version on which it could rely was

Drummond’s version. In Drummond’s version of events, McMichael was clearly the aggressor.

                                      III. CONCLUSION

        For the foregoing reasons, the decision of the commission is affirmed.

                                                                                       Affirmed.




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