COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judge Mc Clanahan and Senior Judge Coleman Argued at Salem, Virginia

DOMINION COAL CORPORATION AND JEWELL RESOURCES CORPORATION & SUBSIDIARIES OPINION BY v. Record No. 0628-08-3 JUDGE ELIZABETH A. McCLANAHAN FEBRUARY 10, 2009 SHANE E. BOWMAN

FROM THE VIRGINIA WORKER S’ 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 “D ominion”) appeal a decision of the Workers’ Compensation Commission awardi ng benefits to claimant, Shane E. Bowman. Dominion argues the commission erred in rejecti ng its willful misconduct defense. For the following reasons, we affirm the decision of the commission.

BACKGROUND Bowman, an employee of Dominion, was inju red at work when a roof-bolting machine fell on his leg. He was immedi ately taken to the hospital fo r treatment, where he was drug tested. The test was positive for methadone.

In a letter to the commissi on 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 § 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 lette r did not state the specific conduct upon which- 2 - Dominion was relying in support of its position. The attachments to the letter, however, included copies of laboratory test results indicati ng that Bowman tested positive for methadone. Subsection (A)(6) of Code § 65.2-30 6 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 subs tance identified as such in Chap ter 34 (§ 54.1-3400 et seq.) of Title 54.1.” Code § 65.2-306(A)(6) (emphasis adde d). Under Code § 54.1-3448, methadone is

identified as a Schedule II cont rolled substance.

Dominion’s letter was followe d by a letter to the commi ssion 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 § 65.2-306(A)(6).” On July 31, 2007, the deputy commissioner c onducted a hearing on Bowman’s claim.

Dominion’s sole defense was th at the claim should be deni ed, pursuant to Code § 65.2-306, based on Bowman’s alleged willful misconduct, sp ecifically his use of methadone, for which he had no valid prescription. In re sponse, Bowman asserted Dominion failed to file its notice of the

1 Bowman stated in his letter that Domi nion’s decision regarding his accident

was based on Section 65.2-306 of th e Virginia Workers’ Compensation Act, but I disputed that decision for the following. I was seeking outpatient treatment. I was prescrib ed 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.- 3 - defense within fifteen days of the heari ng, 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 § 65.2-306. Dominion contended that the letter, with the attached test results, provided timely no tice of the defense and that, in any event, Bowman clearly understood the specific defense, as eviden ced by his initial letter to the commission. 3 The deputy commissioner rejected Dominion’s willful misc onduct defense, finding that Dominion’s July 19, 2007 notice of the defense wa s untimely, and awarded Bowman the benefits he requested. The deputy commissioner also found, based on Bowman’s own testimony, that Bowman was illegally taking metha done at the time of his accident. 4 As the deputy commissioner explained, Bowman falsely represen ted 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 establis h that the [m]ethadone contributed to or caused the accident,” the deputy commissioner found, “the fact that the [m]ethadone wa s 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 di d not give lawful notice of its willful misconduct defense, thus barring the defense. The commission c oncluded that Dominion’s July 19, 2007 notice of

2 Rule 1.10 provides: “If the employer inte nds to rely upon a defense under § 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.”

3 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.

4 In his opinion, the deputy commissioner did not comment on Do minion’s contention that its June 1, 2007 letter constitute d timely notice of the defense.- 4 - the defense was untimely under Rule 1.10, having been filed less than fifteen days before the hearing on Bowman’s claim. The commission al so addressed Dominion’s June 1, 2007 letter, and concluded that it did not pr ovide adequate notice of the de fense under Rule 1.10. Under the commission’s interpretation of the rule, “[i]t wa s not enough for the employer to cite to Virginia Code § 65.2-306 in that letter and a ttach medical records. It was required to state the nature of the misconduct.” Like the deputy commissione r, the commission found that Bowman was prescribed methadone but “obtained it by false pr etenses.” Thus, the co mmission explained, “the burden may have shifted to the claimant to provide clear and convinci ng evidence that he was not intoxicated at the time of the accident [pursuant to Code § 65.2-306(B) 5 ].” That did not occur, however, because “the employer did not provide timely notice of its willful misconduct

defense.” Second, the commission reasoned that even though there was evidence [Bow man] was taking [m]ethadone there is no evidence that the drug caused or contributed to the accident. Virginia Code § 65.2-306(A)(6) provid es that no compensation shall be awarded to the employee for an injury caused by the employee’s use of a nonprescribed controlled s ubstance. If we assumed that he used a nonprescribed controlled s ubstance, the burden was still on the employer to prove that the use of a nonprescr ibed controlled s ubstance caused the work injury. . . . Virginia Code § 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

5 Code § 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 amou nt of . . . [such] substance in the bodily fluids of the employee which . . . yields a positive test result . . ., there shall be a rebuttable presumpti on . . . that the employee was . . . using a nonprescribed controlled substa nce at the time of his injury. The employee may overcome such a presumption by clear and convincing evidence.- 5 - [m]ethadone was a cause of the accident . Indeed, the claimant’s medical evidence shows it was not a cause

. (Emphasis added.) It is undisputed that, in finding Bowman’s me dical evidence established that his use of methadone did not cause the accident, the commi ssion was relying on a July 19, 2007 letter from Dr. Maria Encarnacion, the medical director of the clinic wh ere Bowman was receiving his

methadone treatment at the time of the accident. In the letter, Dr. En carnacion explains that

methadone was administered at the clinic “unde r a doctor’s order and su pervision” 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 perf ormances (reaction time, attention span or intellectual capacity), so the medication allows the patient to feel “normal” and func tion in everyday normal activities including driving and working. (emphasis in original).

ANALYSIS In challenging the commission’s decision, Do minion argues that (a) it complied with Rule 1.10 in providing notice of a willful misc onduct defense through its June 1, 2007 letter and attachments; and (b) having done so, it was ent itled, on the facts presented, to a presumption under Code § 65.2-306(B) to the effect: (i) that Bowman was under the influence of methadone at the time of the accident, and (ii) th at such influence caused the accident. 6

6 Dominion argues in the alternative that Bo wman should be estopped from relying on Rule 1.10 as a bar to its willful misconduct de fense 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 th at issue before the full commission in its written statement on review; nor did it raise that issue in a timel y-filed motion for rehear ing or reconsideration after the full commission issued its opinion. Th us, 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- 6 - In light of the commission’s finding regarding causation, we need not address the validity of its interpretations of Rule 1.10 and Code § 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 attachment s did not comply with Rule 1.10’s notice requirements and that the presumption under Code § 65.2-306(B) does not ex tend to the issue of

causation. 7 Accordingly, for purposes of this decisi on, we will assume Dominion was entitled to the benefit of a rebuttable presumption that Bowm an’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 commi ssion’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 th e commission are bind ing 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,’” wh ich “‘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)). Furt hermore, “[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). Furthermor e, 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 ).

7 As explained, supra , the commission interpreted C ode § 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 pres umption springing from a positive drug test extends to the issue of causation.- 7 - 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 Bowm an’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. Vi ewing Dr. Encarnacion’s Ju ly 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 § 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 supe rvision and that, where so administered, the medication does not interfere with the patient’s no rmal activities, including the ability to work. Dominion’s contention to the contrary notw ithstanding, the fact Bowman obtained the methadone treatment at the clinic by false pret enses, 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 causati on issue and relied solely on Bowman’s methadone use as the presumptive cause of his accident (based on Domi nion’s interpretation of Code § 65.2-306(B)). Dominion offered no evid ence, medical or otherwise, rendering Dr. Encarnacion’s opinion inva lid. And, Dominion offered no evidence indicating that if

Bowman was administered the methadone treatm ent under false pretenses without an addiction to certain narcotic medications, that it, in f act, would alter his psychomotor performances.

8 We further conclude the co mmission was using a clear and convincing standard in making this finding based on the commission’s co mment in the precedin g paragraph of its opinion that, had Dominion provide d timely notice of its willful misconduct defense, “the burden may have shifted to [Bowman] to provide cl ear and convincing evidence that he was not intoxicated at the time of the accident.” See Code § 65.2-306(B).- 8 - CONCLUSION Credible evidence supports the commission’s factual finding that Bowman’s methadone

use did not cause the accident. Accordi ngly, we affirm the commission’s decision.

Affirmed.