Andersen Interior Contracting, Structure Tone, Inc. and Arch Insurance Company v. Samuel Nimmo
1286162
| Va. Ct. App. | Feb 21, 2017Background
- Claimant (Samuel Nimmo) fell from a ladder on May 21, 2015 while installing ceiling tiles in a "clean room" and suffered serious injuries (wrist, elbow, ribs, punctured lung). Employer was general contractor and subcontractor; claimant had worked there ~3 weeks.
- Employer maintained a written zero-tolerance drug/alcohol policy; claimant signed an orientation sheet acknowledging the rule and that post-accident testing was required.
- Blood drawn ~6 hours after the fall showed alcohol; employer experts extrapolated claimant’s BAC at the time of the accident to between .09 and .17, triggering the statutory presumption of intoxication under Va. Code §65.2-306(B).
- Employer argued intoxication and willful violation of the safety rule barred compensation under Va. Code §65.2-306(A); employer’s toxicology experts opined intoxication could have caused the fall.
- The deputy commissioner and the full Virginia Workers’ Compensation Commission found claimant was intoxicated but concluded employer failed to prove intoxication proximately caused the fall; awarded lifetime medical benefits and initial temporary total disability but reversed continued wage benefits for the light-duty period because claimant was validly terminated.
- Employer appealed; the Court of Appeals reviewed factual findings deferentially and affirmed the Commission’s decision.
Issues
| Issue | Plaintiff's Argument (Nimmo) | Defendant's Argument (Employer) | Held |
|---|---|---|---|
| Whether claimant’s intoxication was the proximate cause of his fall | Claimant argued employer failed to prove intoxication caused the fall; ladder falls can occur absent intoxication | Employer argued expert toxicologists established intoxication was the proximate cause | Held: Commission’s factual finding that intoxication did not proximately cause the fall is supported by credible evidence and affirmed |
| Whether intoxication bars compensation under Va. Code §65.2-306(A)(3) | Claimant asserted the statutory bar does not apply because employer failed to prove causation | Employer asserted the statutory intoxication defense applies given BAC and presumption of intoxication | Held: Employer proved intoxication but failed to prove intoxication caused the injury, so the statutory bar did not apply |
| Whether willful breach of employer safety rule bars compensation under Va. Code §65.2-306(A)(5) | Claimant: Although terminated, the willful breach did not cause the injury so compensation is not barred | Employer: Claimant willfully violated a known zero-tolerance rule and that breach caused the injury | Held: Employer proved knowledge and willful violation but not causation; statutory bar did not apply |
| Whether Commission improperly cited non-evidentiary materials (OSHA, university material) | Claimant: citations were permissible and, if error, harmless | Employer: Commission impermissibly relied on materials not in evidence to reach causation conclusion | Held: Citing such materials is permissible; even if error, citations were harmless and did not change the outcome |
Key Cases Cited
- Artis v. Ottenberg’s Bakers, Inc., 45 Va. App. 72, 608 S.E.2d 512 (2005) (standard of appellate review—view evidence in light most favorable to prevailing party below)
- Basement Waterproofing & Drainage v. Beland, 43 Va. App. 352, 597 S.E.2d 286 (2004) (ladders are inherently dangerous; falls from ladders may be compensable absent other bars)
- Am. Safety Razor Co. v. Hunter, 2 Va. App. 258, 343 S.E.2d 461 (1986) (employer must prove intoxication proximately caused injury to invoke statutory bar)
- SunTrust Bank v. PS Bus. Parks, L.P., 791 S.E.2d 571 (Va. 2016) (clarifies burden of proof: burden of production vs. burden of persuasion)
- Williams v. Fuqua, 199 Va. 709, 101 S.E.2d 562 (1958) (Commission not bound by common-law rules of evidence and may consult treatises and hearsay)