COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judge McClanahan and Senior Judge Coleman
Argued at Salem, Virginia
DOMINION COAL CORPORATION AND
JEWELL RESOURCES CORPORATION &
v. Record No. 0628-08-3 JUDGE ELIZABETH A. McCLANAHAN
FEBRUARY 10, 2009
SHANE E. BOWMAN
FROM THE VIRGINIA WORKERS? COMPENSATION COMMISSION
S. T. Mullins (Street Law Firm, LLP, on briefs), for appellants.
Kerry S. Hay (Lee & Phipps, P.C., on brief), for appellee.
Dominion Coal Corporation and its insurer (collectively ?Dominion?) appeal a decision
of the Workers? Compensation Commission awarding benefits to claimant, Shane E. Bowman.
Dominion argues the commission erred in rejecting its willful misconduct defense. For the
following reasons, we affirm the decision of the commission.
Bowman, an employee of Dominion, was injured at work when a roof-bolting machine
fell on his leg. He was immediately taken to the hospital for treatment, where he was drug
tested. The test was positive for methadone.
In a letter to the commission dated June 1, 2007, Dominion stated it was denying the
?compensability? of Bowman's accident ?based on Section 65.2-306 of the Virginia Workers?
Compensation Act (supporting documentation enclosed).? Code Â§ 65.2-306 provides six
defenses an employer may raise in response to a workers? compensation claim based on a
claimant's alleged misconduct. Dominion's letter did not state the specific conduct upon which
Dominion was relying in support of its position. The attachments to the letter, however, included
copies of laboratory test results indicating that Bowman tested positive for methadone.
Subsection (A)(6) of Code Â§ 65.2-306 provides, in pertinent part, that ?[n]o compensation shall
be awarded to the employee . . . for an injury . . . caused by . . . [t]he employee's use of a
nonprescribed controlled substance identified as such in Chapter 34 (Â§ 54.1-3400 et seq.) of Title
54.1.? Code Â§ 65.2-306(A)(6) (emphasis added). Under Code Â§ 54.1-3448, methadone is
identified as a Schedule II controlled substance.
Dominion's letter was followed by a letter to the commission from Bowman requesting
?an appeal? for denied workers? compensation benefits. 1 Bowman then filed a formal claim in
June 2007, seeking compensation for wage loss and medical benefits.
On July 19, 2007, Dominion filed a ?Notice of Misconduct Defense? to Bowman's claim.
It stated that Dominion would be ?asserting a misconduct defense as has been previously noticed
to the claimant, and more specifically that this claim is barred pursuant to Code
On July 31, 2007, the deputy commissioner conducted a hearing on Bowman's claim.
Dominion's sole defense was that the claim should be denied, pursuant to Code Â§ 65.2-306,
based on Bowman's alleged willful misconduct, specifically his use of methadone, for which he
had no valid prescription. In response, Bowman asserted Dominion failed to file its notice of the
Bowman stated in his letter that Dominion's decision regarding his accident
was based on Section 65.2-306 of the Virginia Workers? Compensation
Act, but I disputed that decision for the following. I was seeking
outpatient treatment. I was prescribed methadone by Dr. Maria Carnecion
through Clinch Valley Treatment Center. (letter enclosed) The use of
methadone was not illegal. I was under a doctor's care.
[End Page 2]
defense within fifteen days of the hearing, as required by the commission's Rule 1.10, 2 and,
therefore, the defense should be rejected as untimely. Bowman also asserted that Dominion?s
June 1, 2007 letter failed to comply with Rule 1.10 because it did not specify Bowman's conduct
that allegedly violated Code Â§ 65.2-306. Dominion contended that the letter, with the attached
test results, provided timely notice of the defense and that, in any event, Bowman clearly
understood the specific defense, as evidenced by his initial letter to the commission. 3
The deputy commissioner rejected Dominion's willful misconduct defense, finding that
Dominion's July 19, 2007 notice of the defense was untimely, and awarded Bowman the benefits
he requested. The deputy commissioner also found, based on Bowman's own testimony, that
Bowman was illegally taking methadone at the time of his accident. 4 As the deputy
commissioner explained, Bowman falsely represented that he was addicted to certain narcotic
medications in order to obtain the methadone for the relief of pain. ?[H]owever, as there [was]
no evidence to suggest or establish that the [m]ethadone contributed to or caused the accident,?
the deputy commissioner found, ?the fact that the [m]ethadone was obtained illegally [did] not
require that [Bowman?s] claim be forfeited.?
On appeal, the full commission affirmed the deputy commissioner's decision. First, the
commission ruled that Dominion did not give lawful notice of its willful misconduct defense,
thus barring the defense. The commission concluded that Dominion's July 19, 2007 notice of
Rule 1.10 provides: ?If the employer intends to rely upon a defense under Â§ 65.2-306 of
the Act, it shall give to the employee and file with the Commission no less than 15 days prior the
hearing, a notice of its intent to make such defense together with a statement of the particular act
relied upon as showing willful misconduct.?
Because we assume error on the part of the commission in its application of Rule 1.10,
as discussed, infra, we do not address the validity of Dominion's actual notice argument.
In his opinion, the deputy commissioner did not comment on Dominion's contention
that its June 1, 2007 letter constituted timely notice of the defense.
[End Page 3]
the defense was untimely under Rule 1.10, having been filed less than fifteen days before the
hearing on Bowman's claim. The commission also addressed Dominion's June 1, 2007 letter,
and concluded that it did not provide adequate notice of the defense under Rule 1.10. Under the
commission's interpretation of the rule, ?[i]t was not enough for the employer to cite to Virginia
Code Â§ 65.2-306 in that letter and attach medical records. It was required to state the nature of
the misconduct.? Like the deputy commissioner, the commission found that Bowman was
prescribed methadone but ?obtained it by false pretenses.? Thus, the commission explained, ?the
burden may have shifted to the claimant to provide clear and convincing evidence that he was
not intoxicated at the time of the accident [pursuant to Code Â§ 65.2-306(B) 5 ].? That did not
occur, however, because ?the employer did not provide timely notice of its willful misconduct
Second, the commission reasoned that
even though there was evidence [Bowman] was taking [m]ethadone there
is no evidence that the drug caused or contributed to the accident.
Virginia Code Â§ 65.2-306(A)(6) provides that no compensation shall be
awarded to the employee for an injury caused by the employee's use of a
nonprescribed controlled substance. If we assumed that he used a
nonprescribed controlled substance, the burden was still on the employer
to prove that the use of a nonprescribed controlled substance caused the
work injury. . . . Virginia Code Â§ 65.2-306(B) merely provides a
presumption which the claimant can rebut. Even if there had been
adequate notice, the employer did not produce evidence that his use of
Code Â§ 65.2-306(B) provides, in relevant part, as follows:
The person or entity asserting any of the defenses in this section
shall have the burden of proof with respect thereto. However, if the
employer raises as a defense the employee's . . . use of a nonprescribed
controlled substance identified as such Chapter 34 of Title 54.1, and there
was at the time of the injury an amount of . . . [such] substance in the
bodily fluids of the employee which . . . yields a positive test result . . .,
there shall be a rebuttable presumption . . . that the employee was . . .
using a nonprescribed controlled substance at the time of his injury. The
employee may overcome such a presumption by clear and convincing
evidence.[End Page 4]
[m]ethadone was a cause of the accident. Indeed, the claimant's medical
evidence shows it was not a cause.
It is undisputed that, in finding Bowman's medical evidence established that his use of
methadone did not cause the accident, the commission was relying on a July 19, 2007 letter from
Dr. Maria Encarnacion, the medical director of the clinic where Bowman was receiving his
methadone treatment at the time of the accident. In the letter, Dr. Encarnacion explains that
methadone was administered at the clinic ?under a doctor's order and supervision? in ?a very
structured program.? Dr. Encarnacion then states:
Studies of long term administration of methadone have confirmed that it is
a medically safe drug. It has been demonstrated that a dose of 20 to 120
mg per day is not toxic or dangerous to any organ or system even with
continuous treatment up to 14 years. When prescribed appropriately
methadone does not impair psychomotor performances (reaction time,
attention span or intellectual capacity), so the medication allows the
patient to feel ?normal? and function in everyday normal activities
including driving and working.
(emphasis in original).
In challenging the commission's decision, Dominion argues that (a) it complied with
Rule 1.10 in providing notice of a willful misconduct defense through its June 1, 2007 letter and
attachments; and (b) having done so, it was entitled, on the facts presented, to a presumption
under Code Â§ 65.2-306(B) to the effect: (i) that Bowman was under the influence of methadone
at the time of the accident, and (ii) that such influence caused the accident. 6
Dominion argues in the alternative that Bowman should be estopped from relying on
Rule 1.10 as a bar to its willful misconduct defense because he admittedly provided false
information to his health care provider in order to obtain the methadone, a Schedule II narcotic.
Dominion, however, did not raise that issue before the full commission in its written statement
on review; nor did it raise that issue in a timely-filed motion for rehearing or reconsideration
after the full commission issued its opinion. Thus, Rule 5A:18 bars our consideration of that
issue for the first time on appeal. See Rule 5A:18; Williams v. Gloucester Sheriff's Dep?t, 266[End Page 5]
In light of the commission's finding regarding causation, we need not address the validity
of its interpretations of Rule 1.10 and Code Â§ 65.2-306(B) relative to Dominion's willful
misconduct defense. We will assume, without deciding, the commission erred in ruling that
Dominion's June 1, 2007 letter and attachments did not comply with Rule 1.10's notice
requirements and that the presumption under Code Â§ 65.2-306(B) does not extend to the issue of
causation. 7 Accordingly, for purposes of this decision, we will assume Dominion was entitled to
the benefit of a rebuttable presumption that Bowman's methadone use caused his accident. But,
based on the commission's factual finding that Bowman's methadone use was not the cause of
the accident, we nevertheless affirm the commission's decision awarding benefits to Bowman.
Under settled principles, ?we defer to the commission in its role as fact finder.? Tuck v.
Goodyear Tire & Rubber Co., 47 Va. App. 276, 282, 623 S.E.2d 433, 436 (2005) (citing VFP,
Inc. v. Shepherd, 39 Va. App. 289, 292, 572 S.E.2d 510, 511 (2002)). ??If supported by credible
evidence, the factual findings of the commission are binding on appeal.?? Id. (quoting Tomes v.
James City Fire, 39 Va. App. 424, 430, 573 S.E.2d 312, 315 (2002)). This includes ??[t]he actual
determination of causation,?? which ??is a factual finding.?? Pruden v. Plasser Am. Corp., 45
Va. App. 566, 576, 612 S.E.2d 738, 743 (2005) (quoting Ingersoll-Rand Co. v. Musick, 7
Va. App. 684, 688, 376 S.E.2d 814, 817 (1989)). Furthermore, ?[o]n [an] employer's appeal
from the decision of the commission, we view the evidence in the light most favorable to
Va. 409, 411, 587 S.E.2d 546, 548 (2003). Furthermore, Dominion does not argue that we should invoke the ?good cause? or ?ends of justice? exceptions to Rule 5A:18, and we decline to
do so sua sponte. Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448
(2003) (en banc).
As explained, supra, the commission interpreted Code Â§ 65.2-306(B) as providing the
basis for a rebuttable presumption that the claimant was under the influence of a nonprescribed
controlled substance at the time of an accident if the claimant tested positive for the substance,
but the burden remains on the employer to prove that such influence caused the accident.
Dominion, on the other hand, argues that the presumption springing from a positive drug test
extends to the issue of causation.[End Page 6]
claimant, the prevailing party below.? Herbert Clements & Sons, Inc. v. Harris, 52 Va. App.
447, 452, 663 S.E.2d 564, 567 (2008) (citation omitted).
Here, the commission expressly found that Bowman's use of methadone at the time of his
accident did not, in fact, cause or contribute to the roof-bolting machine falling on his leg, as
established by Bowman's medical evidence. Viewing Dr. Encarnacion's July 19, 2007 letter in
the light most favorable to Bowman, we conclude it presents credible evidence in support of this
finding. 8 Accordingly, this evidence rebutted any presumption that may have been accorded
Dominion under Code Â§ 65.2-306(B). In the letter, Dr. Encarnacion explained that at the clinic
where Bowman received his methadone treatment the methadone was administered in a
structured program under a doctor's order and supervision and that, where so administered, the
medication does not interfere with the patient's normal activities, including the ability to work.
Dominion's contention to the contrary notwithstanding, the fact Bowman obtained the
methadone treatment at the clinic by false pretenses, in and of itself, fails to negate
Dr. Encarnacion's opinion that the treatment, as administered, would not have affected
Bowman's ability to perform his job.
Dominion offered no evidence on the causation issue and relied solely on Bowman?s
methadone use as the presumptive cause of his accident (based on Dominion's interpretation of
Code Â§ 65.2-306(B)). Dominion offered no evidence, medical or otherwise, rendering
Dr. Encarnacion's opinion invalid. And, Dominion offered no evidence indicating that if
Bowman was administered the methadone treatment under false pretenses without an addiction
to certain narcotic medications, that it, in fact, would alter his psychomotor performances.
We further conclude the commission was using a clear and convincing standard in
making this finding based on the commission's comment in the preceding paragraph of its
opinion that, had Dominion provided timely notice of its willful misconduct defense, ?the burden
may have shifted to [Bowman] to provide clear and convincing evidence that he was not
intoxicated at the time of the accident.? See Code Â§ 65.2-306(B).[End Page 7]
Credible evidence supports the commission's factual finding that Bowman's methadone
use did not cause the accident. Accordingly, we affirm the commission's decision.
[End Page 8]
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