COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

FREDDIE JODUAN FLEMING 

 MEMORANDUM OPINION*

v. Record No. 1017-97-1 PER CURIAM 

 SEPTEMBER 9, 1997 

SNAP CONTRACTING CORPORATION 

AND 

TWIN CITY FIRE INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Freddie Joduan Fleming, pro se, on brief). 

 (Amy Moss Levy; Willcox & Savage, on brief), 

for appellees. 

 Freddie Joduan Fleming (claimant) contends that the Workers' 

Compensation Commission (commission) erred in finding that his 

claim for workers' compensation benefits was barred by his use of 

a non-prescribed controlled substance pursuant to Code 

§ 65.2-306(A)(6).1 Upon reviewing the record and the briefs of 

the parties, we conclude that this appeal is without merit. 

Accordingly, we summarily affirm the commission's decision. Rule 

5A:27. 

 On appeal, we view the evidence in the light most favorable 

to the prevailing party below. See R.G. Moore Bldg. Corp. v. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 

 1Because claimant did not argue before the commission that 

the application of Code § 65.2-306(A)(6) to his claim denied him 

due process of law, we will not address this argument on appeal. 

See Kendrick v. Nationwide Homes, Inc., 4 Va. App. 189, 192, 355 

S.E.2d 347, 349 (1987); Rule 5A:18. 
 2 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 

Factual findings made by the commission will be upheld on appeal 

if supported by credible evidence. See James v. Capitol Steel 

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). 

 On May 21, 1996, claimant, who worked for employer as a 

carpenter, was making holes in a brick wall for a ventilation 

duct along with a co-worker, Rodney Wapples. Claimant and 

Wapples disassembled scaffolding on the porch, and then moved it 

inside and re-assembled it. When they re-assembled the 

scaffolding, a wing nut, which held the hand rail, was not 

attached. When claimant climbed the scaffolding, the hand rail 

came off, causing him to slip and fall onto the concrete floor. 

Claimant injured his head and shoulder. Wapples testified that 

claimant failed to put the wing nut on the rail. 

 Immediately after the accident, claimant tested positive for 

marijuana pursuant to a National Institute on Drug Abuse (NIDA) 

certified laboratory test. Claimant contended that he had not 

used marijuana on the job, but that he had been to a party on 

May 19, 1996, where other people smoked marijuana. 

 Code § 65.2-306(A)(6) bars compensation for an injury or 

death caused by the employee's use of a non-prescribed controlled 

substance, such as marijuana. If there is evidence of a positive 

NIDA certified drug test, Code § 65.2-306(B) provides a 

rebuttable presumption that the employee was using a 

non-prescribed controlled substance at the time of his injuries. 
 3 

 In denying the claimant's application, the commission found 

as follows: 

 We find that the evidence supports the 

finding that the claimant's drug test fairly 

and accurately recorded the presence of 

marijuana in his system. Section 65.2-306(B) 

allows a rebuttable presumption of 

intoxication under such circumstances, and we 

find that this presumption has not been 

rebutted. The evidence also supports the 

Deputy Commissioner's finding that the 

claimant's intoxication contributed to the 

accident. The fact that the claimant did not 

attach the wing nut, which was present and 

was discovered after the accident, and 

nevertheless climbed up the scaffolding 

holding onto the railing, indicates that an 

impaired judgment was the cause of the 

accident. 

 The positive drug test supports the commission's finding 

that employer's evidence triggered the rebuttable presumption 

contained in Code § 65.2-306(B). As fact finder, the commission 

was entitled to reject appellant's testimony that he had not 

smoked marijuana, but had attended a party where others had 

smoked the drug. It is well settled that credibility 

determinations are within the fact finder's exclusive purview. 

See Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 381, 

363 S.E.2d 433, 437 (1987). Furthermore, based upon Wapples' 

testimony and the circumstances of the accident, the commission 

could reasonably infer that claimant's use of marijuana 

proximately caused his injuries. "Where reasonable inferences 

may be drawn from the evidence in support of the commission's 

factual findings, they will not be disturbed by this Court on 
 4 

appeal." Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 

374 S.E.2d 695, 698 (1988). Based upon this record, the 

commission did not err in finding that claimant failed to rebut 

the presumption contained in Code § 65.2-306(B). 

 Accordingly, we affirm the commission's decision. 

 Affirmed.