United States Department of Labor
Office of Administrative Law Judges Law Library
[Remarks by District Chief Judge David W. Di Nardi at The
Annual Longshore Conference, sponsored by Loyola University
School of Law in cooperation with the United States Department of
Labor, March 21-22, 1996, New Orleans, Louisiana]
INTOXICATION AS A DEFENSE
UNDER THE LONGSHORE ACT
FROM THE ADMINISTRATIVE
LAW JUDGE'S VIEWPOINT
1. One of the more interesting defenses
available
to employers and insurance companies under the Longshore Act is
Section 3(c) which provides as follows:
No compensation shall be payable
if the injury was occasioned
solely by the intoxication of
the employee or by the willful
intention of the employee to injure
or kill himself or another.
(Emphasis added)
Those thirty-two words are very specific, easily read and
should not present any controversy. However, a survey of the
action of ALJs, as reviewed by the Benefits Review Board and the
appellate courts, presents an interesting history for those faced
with a longshore claim involving Section 3(c).
As the word is not defined in the Longshore Act, the initial
inquiry in this
paper is what constitutes intoxication? Do we look to state
driving laws and
regulations dealing with driving while intoxicated or driving
under the influence?
Should we look at state laws or local ordinances pertaining to
public intoxication?
As Section 3(c) provides that compensation can be denied on the
ground that the
injury was occasioned solely by intoxication, the
definition of intoxication
becomes very important. Is the test an objective one? Or is it
a subjective test
based on the perceptions of eyewitnesses. If objective, is, for
instance, a violation
of the state blood-alcohol level for driving a motor vehicle, a
per se
violation of Section 3(c). If subjective, do we require that the
eye witnesses testify
as to the various levels of drunkenness, such as the merry, the
affectionate, the
pugnacious, the suspicious, the lachrymose, the somnolent and,
finally, the out-cold
state?
It is obvious from the brief survey of cases in this paper
that proof of
intoxication does not follow from evidence that the claimant had
had a few drinks
American Cas. Co. v. Jones, 224 Ark. 731, 276 S.W.2d 41
(1955) (death
of a salesman from a collision with a parked bulldozer not
occasioned solely by
intoxication although he had consumed five cans of beer); that
there was a smell
of liquor on claimant's breath (United States Fidelity &
Guaranty Co.
v. Davis, 99 Ga. App 45, 107 S.E.2d 571 (1959) In
Davis, the
court held that the circumstantial evidence of a half-bottle of
whiskey at the scene
of an injury, and testimony from a witness that the decedent
"was not
drunk" but had an odor of alcohol, did not constitute a
finding of intoxication.
Rather, the court found that earlier complaints by decedent of
fatigue and illness
could also support a finding that the accident had been caused by
sickness and lack
of sleep. To find that decedent was intoxicated, and further
find that the accident
was caused by this intoxication, would constitute pyramiding an
inference on an
inference. Therefore, death benefits were awarded. Id.
A half-empty
wine bottle was held insufficient evidence to establish
intoxication, even
coupled with the claimant's own statement that he had "had
too much
to drink".Van Note v. Combs, 24 N.J. Super.
529, 95 A.2d
12 (App. Div. 1953) (emphasis added); Finally, evidence that the
claimant enjoyed
a general reputation of being a heavy drinker also did not
establish intoxication.
Lefens v. Industrial Comm'n, 286 Ill. 32, 1231 N.E. 181
(1919);
Mass. Bonding & Ins. Co. v. Industrial Comm'n and
Tate, 8 Wis.
2d 606, 99 N.W.2d 809 (1959) In Mass. Bonding & Ins. v.
Industrial
Comm'n and Tate, there was no evidence establishing how a
restaurant cook
fell down stairs and injured himself. The head chef testified
that he though the
cook was intoxicated and that his speech was not like that of a
sober person.
Nevertheless, an award of benefits was affirmed as there was no
competent proof
that the injury resulted from intoxication. Id.
Note that the statute does not define
"intoxication" and that
Section 3(c) does not contain such modifying or descriptive terms
as
"excessive drinking" or simply the "use of
alcohol. We should
also keep in mind that while we each have our understanding of
what the term
means, the dictionary definition is drunkenness or one stupefied
to such an extent
as to be affected temporarily by diminished control over one's
physical and mental
powers as a result of ingesting alcoholic beverages, a drug or
some other substance.
Dorland's Illustrated Medical Dictionary, Twenty-sixth
Edition, p. 674,
gives as the first definition: poisoning, the state of being
poisoned; and, the second
definition is the condition produced by excessive use of alcohol,
especially ethanol.
Does "intoxication" refer only to the use of
alcohol or to narcotic
drugs or other controlled substances? Black's Law
Dictionary, Fourth
Edition, limits intoxication to "alcoholic
intoxication" with the added
comment that this is its meaning as used in statutes,
indictments, etc. However, in
the Fifth Edition, Black now states, "Under most
statutes dealing
with driving while intoxicated, 'intoxication' includes such by
alcohol or by drug
or by both." Moreover, The Oxford Universal
Dictionary, Third
Edition, defines "intoxication" as "the action of
stupefying with
a drug or alcoholic liquor." And stupefy, in its ordinary
meaning, involves
dulling one's senses or facilities, or to be stunned.
Texas Labor Code §401.013(a)(2) defines intoxication
as follows:
NOT HAVING THE NORMAL USE OF
MENTAL OR PHYSICAL FACULTIES RESULTING
FROM THE VOLUNTARY INTRODUCTION INTO
THE BODY OF A DANGEROUS DRUG, AN
ABUSABLE GLUE OR AEROSOL PAINT, OR ANY
SIMILAR SUBSTANCE REGULATED UNDER
STATE LAW
The earliest reported case by an administrative law judge
was issued on
January 29, 1975, shortly after the Office of Administrative Law
Judges of the U.S.
Department of Labor was established, and in that case Claimant's
husband, a
welder, was killed when he fell while attempting to cross between
two iron ore cars
of a moving train in violation of the employer's work rules.
Evidence in the record
shows that prior to the accident deceased had consumed six ounces
of alcoholic
beverage. Employer voluntarily paid compensation to the widow
and surviving
children from the time of the accident, but controverted the
claim on the ground
that deceased's death resulted solely from intoxication and thus
was not
compensable under the Longshore Act. The ALJ held that
claimant and surviving
children of the deceased employee were entitled to death benefits
under Section 9
of the Act.
According to the judge, the Section 3(c) intoxication
defense depends upon
such factors as the type and amount of alcoholic beverage
consumed, whether or
not the person has eaten before or during the drinking, the size
and weight of the
drinker and his or her course of activity during the drinking.
Intoxication exists
when, due to overindulgence in alcohol, an employee's mental
and/or physical
faculties are impaired so as to interfere with the performance of
his or her duties.
Olson v. Duluth, Missabe and Iron Range Railway Company, 1
BRBS
13 (ALJ)(1975).
As can be seen, the judge added a number of factors not
mentioned in the
statute.
Not to be outdone, the Board, in its first reported
decision, reviewed a
decision involving a seriously injured claimant allegedly
smelling of liquor who
was found lying on the ground beneath his third floor motel room,
the claimant
apparently having fallen, jumped or been pushed from the window
of his room.
The relevant information provided directly by the claimant
concerns his preparing
for bed, taking a drink from a glass of whiskey and lying down in
bed. He
remembered nothing else until he found himself lying in the
parking lot in a pool
of his own blood. The investigating police officer, discounting
the claimant's story
that he had been attacked and robbed by two or three assailants,
testified that the
claimant smelled of liquor and appeared to be intoxicated when
they questioned
him in the parking lot.
The doctor who evaluated the claimant's injuries at the
hospital testified that
the claimant smelled of alcohol and acted for several hours in a
manner consistent
with acute intoxication. However, no objective test was
conducted to determine
how much alcohol the claimant had consumed. Finally, the
doctor's notes in the
hospital record indicate that the claimant told him he had
consumed half a bottle
of Chivas Regal.
From this evidence, the administrative law judge drew
several inferences and
advanced a hypothesis as to the sequence of events which produced
the claimant's
injuries. It was inferred that the claimant consumed half to
three quarters of a
bottle of Chivas Regal whiskey and became intoxicated; that he
was not assaulted;
that some time after becoming intoxicated, he opened the sliding
window beside
the bed to get some fresh air; that while standing on the bed
beside the open
window, the claimant lost his balance and fell out; and that this
fall was caused
solely by the claimant's intoxication. From these inferences,
the judge then
concluded that the claimant was not entitled to compensation
because he was
excluded from coverage by the then Section 3(b) of the Act, a
provision which was
recodified as Section 3(c) by the 1984 Amendments to the Act.
Shelton v.
Pacific Architects and Engineers, 1 BRBS 306 (1975).
Claimant appealed from the denial of benefits and the Board,
in reversing the
judge, found "it is undisputed that the accident which
caused the claimant's
injuries occurred in the course of his employment while traveling
from South
Vietnam to Pasco, Washington. The Act creates a presumption that
an injury
occurring in the course of employment comes within the provisions
of the Act. 33
U.S.C. §920(a). Unless there is substantial evidence to
the contrary, an
injury occurring in the course of one's employment is presumed to
have arisen from
that employment. Travelers Insurance Co. v. Donovan, 221
F.2d 886
(D.C. Cir. 1955). The Act contains a further presumption, in the
absence of
substantial evidence to the contrary, that the injury was not
occasioned
solely by the intoxication of the injured employee. 33
U.S.C.
§920(c). Only when the Section 20(d) presumption is
overcome by
substantial evidence does the Section 3(b) exclusion from
coverage apply,"
according to the Board.
The Board, in interpreting the parameters of the Section
20(a), (c)
presumptions and although acknowledging that "the Board is
cognizant of
the rule of judicial review which requires that inferences drawn
by the trier of facts
are to be accepted unless they are irrational or unsupported by
substantial evidence
on the record as a whole, O'Keeffe v. Smith Associates,
380 U.S. 364
(1965)," held that a "case cannot be established by
piling one inference
upon another inference, Standard Accident Insurance Co. v.
Nichols,
146 F.2d 376 (5th Cir. 1944)," and even "direct
testimony of a
claimant's intoxication which leads the trier of facts to
conclude that a claimant was
intoxicated at the time of his accident, may not be so compelling
as to require the
trier of facts, as a matter of law, to find that an injury was
caused solely
by intoxication. C.F. Lytle Co. v. Whipple, 156 F.2d 155
(9th Cir.
1946)." Furthermore, "Reliance on hypothetical
probabilities in
rejecting a claim is contrary to the presumption of coverage
contained in the Act.
Steele v. Adler, 269 F.Supp. 376 (D.D.C. 1967)" and
the "Act
is to be construed with a view to its beneficent purposes"
and all
"doubts, including the factual, are to be resolved in favor
of the injured
employee. Wheatley v. Adler, 407 F.2d 307 (D.C. Cir.
1968)."
With reference to the particular facts of the case before
it, in Shelton,
supra, the Board pointed out that it is "not sufficient
in a Section 20(c)
case to weigh the evidence and draw a reasonable inference."
Section 20(c),
an important presumption, provides that
IN THE ABSENCE OF SUBSTANTIAL EVIDENCE TO THE
CONTRARY, IT SHALL BE PRESUMED THAT THE INJURY WAS NOT
OCCASIONED SOLELY BY THE INTOXICATION OF THE INJURED
EMPLOYEE
What constitutes substantial evidence?
At this point it is worthwhile to keep in mind that evidence
will be
considered substantial "if it is the kind of evidence a
reasonable mind might
accept as adequate to support a conclusion." John W.
McGrath Corp.
v. Hughes, 264 F.2d 314, 316 (2d Cir.), cert denied. 360 U.S.
931, 79 S.Ct
1451, 3 L.Ed.2d 1545 (1959); see in reDistrict of
Columbia
Workmens' Compensation Act, 554 F.2d 1075 (D.C.Cir.),
certdenied, 429 U.S. 820, 97 S.Ct. 67.50 L.Ed.2d 81 (1976).
In Shelton, the Board, clearly substituting its
opinion for that of
the presiding judge who observed the demeanor of the employee as
he testified at
the hearing and while candidly admitting that "(a)lthough
the inference of
intoxication on the facts here was perfectly reasonable in a case
such as this, where
there is no direct proof of the claimant's actions which caused
him to fall and
sustain severe injuries, it is not proper to draw a series of
interdependent inferences
to reach a hypothesis of how this accident happened and then
conclude that such
circumstantial evidence is sufficient to overcome the presumption
of Section
20(c)" as the employee "must be given the benefit of
the presumption
where substantial doubts as to what actually happened remain
unresolved."
The Board then remanded the claim to the judge "for
evaluation of the
claimant's continuing disability and entry of a compensation
order consistent with
(its) opinion." Shelton, supra, 1 BRBS 306, 309-12,
314-315
(1975)
Very few decisions of the Board dealing with Section 3(c)
make it to an
appellate court but one which did is Walker v. Universal
Terminal &
Stevedoring Corp., 7 BRBS 1019 (1978), wherein the Board
reviewed a
claim defended by the employer on the ground that the employee, a
"hatch" man assisting in the unloading of a vessel
became partially
unconscious, solely as a result of his intoxication, and
who died on the
way to the hospital. There were no eyewitnesses to the actual
incident and the
administrative law judge, crediting the testimony of the
employer's medical expert,
concluded that the employee's death was caused solely by
his intoxication.
Thus, benefits were denied the surviving widow. The Board, in
its analysis of the
record, reversed the denial of benefits as the judge's decision
was not supported by
substantial evidence. The employer appealed from that decision
and the U.S. Court
of Appeals for the Third Circuit issued a noteworthy opinion on
two most
important aspects which over the years has continued to cause
tension between the
Office of Administrative Law Judges and the Benefits Review
Board, namely the
respective roles of the presiding administrative law judge and
the Board in claims
under the Longshore Act.
Initially, the Court noted that the judge makes findings of
fact and determines
the validity of the claim after weighing and evaluating the
evidence. The Court
then noted that, pursuant to Section 21(b)(3) of the Longshore
Act, the Board
"does not make any independent findings of fact" and
that the
"findings of fact in the decision under review by the Board
shall be
conclusive if supported by substantial evidence in the record
considered as a
whole." (Emphasis added) The appellate court's
function then is to
review Board decisions "for errors of law, and to make
certain that the Board
adhered to its scope of review provision." In a most
significant statement,
the Court noted that it "does not determine if the Board's
decision is
supported by substantial evidence; we review the Board's
determination of whether
the ALJ's decision is supported by substantial
evidence."
(Emphasis added) Walker v. Universal Terminal &
Stevedoring
Corp., 645 F.2d 170, 172, 13 BRBS 257 (3d Cir. 1981).
The Court, after pointing out that the "Benefits Review
Board is not
empowered to engage in a de novo proceeding or
unrestricted review of
a case brought before it," 20 C.F.R. §802.301 (1980),
held that the
presumptions of Section 20(a), (c), do "not have the quality
of affirmative
evidence," that the presiding judge had the discretion to
accept and credit the
testimony of the employer's medical experts as the presumptions
had been rebutted
by substantial evidence, that the ALJ was amply supported by
substantial evidence
in the record as a whole for his conclusion that intoxication was
the sole
cause of the employee's death and "that the Benefits Review
Board exceeded
its scope of review." The Third Circuit Court, thus,
reversed the Board's
decision "with directions to reinstate the original decision
of the
administrative law judge denying the claim of Methel Walker for
death
benefits." Walker, supra, 645 F.2d at 172 fn 2, 173,
176-177, 13
BRBS at 261 fn 2, 262, 267-268
(a) In Colliton v. Defoe Shipbuilding
Company, 3 BRBS 331 (1976), the ALJ rejected the employer's
position that
the employee's death was occasioned solely by his
intoxication based,
partly, on "an unsworn statement by the sole eye witness to
the
accident." The Board, after paying its usual homage
to the judge
by citing O'Keefe v. Smith Associates, 380 U.S. 359
(1965)("the
Board must accept the inferences of the presiding judge if they
are not irrational
or unsupported by substantial evidence in the record as a
whole"), John
W. McGrath Corp. v. Hughes, 289 F.2d 403 (2d Cir.
1961)("the Board
must respect the fact-finder's evaluation of the credibility of
witnesses"),
Banks v. Chicago Grain Trimmers Ass'n, 390 U.S. 4590
(1968)("it is solely within the province of the
administrative law judge to
accept or reject all or any part of any testimony"),
South Chicago Coal
and Dock Co. v. Bassett, 104 F.2d 522 (7th Cir. 1939),
aff'd, 309
U.S. 251 (1940)("in reviewing findings of the trier of fact,
the reviewing
body may not reweigh evidence, but may only inquire into the
existence of
evidence to support the findings") and Young & Co. v.
Shea,
397 F.2d 185 (5th Cir. 1968), reh. denied, 404 F.2d 1059
(5th Cir. 1968),
cert. denied, 395 U.S. 920 (1969) ("the reviewing
body must
consider the policy of the Act that all doubtful questions are to
be resolved in favor
of the claimant, in determining whether there was substantial
evidence before the
fact-finder"), then affirmed the ALJ's decision awarding
benefitsto the employee's widow.
The Board noted that the ALJ found that the employee
"was
moderately intoxicated," that the sole eye witness to the
accident when the
employee fell from a ladder into the water and drowned "told
the Coast
Guard that 'everything appeared to be normal' about Colliton's
manner as he
approached the ship," that "the medical evidence
pointed to the
possibility that Colliton suffered a heart attack immediately
before he fell from the
ship's ladder" and that the unsworn statement given to the
Coast Guard was
properly admitted into evidence as the ALJ is not "bound by
common law or
statutory rules of evidence or by technical or formal rules of
procedure," 20
C.F.R. §702.339, and as "under the Administrative
Procedure Act,
evidence is not, because of its nature as hearsay, automatically
inadmissible in
hearings before administrative agencies subject to the Act. 5
U.S.C.
§556(d)." Colliton, supra at 332-335.
(b) In O'Connor v. Triple A Machine
Shop,
13 BRBS 473 (1981), the Board affirmed the ALJ's denial of
benefits as the
employee's injury was barred under the then Section 3(b) since
his injury was
occasioned by his willful intention to harm another person. The
ALJ had rejected
the employee's argument that any intoxication was brought about
by the employer's
condoning of alcohol. In O'Connor, although the ALJ
"concluded
that claimant's injury was not occasioned solely by his
intoxication," as
"no evidence persuasively established that the cause of
claimant's attack on
Ms. Yabarra was intoxication rather than the particular
circumstances or a general
propensity," there was some evidence that "claimant was
violent after
drinking on two prior occasions" and the judge "found
that claimant
was in sufficient control of his faculties to form an intention
to injure another
person independent of any alcoholic influence." I note that
the ALJ had
"also found, in the alternative, that employer was barred
from asserting the
defense of intoxication because, by furnishing at least one
intoxicating drink on the
job, and by failing to discourage the consumption of others,
employer, in effect,
condoned the use of alcohol." O'Connor, supra at
477-479.
(c) In Birdwell v. Western Tug &
Barge, 16 BRBS 321 (1984), the Board affirmed the award of
benefits and
the ALJ, concluding that the then Section 3(b) did not bar
recovery, accepted the
autopsy pathologist's opinion that intoxication may have been a
factor in the
employee's death but it was not the principal, let alone sole,
cause of
death. In this case, the Board held that Section 3(b) must
be read in
conjunction with Section 20(c), which provides that, in the
absence of substantial
evidence to the contrary, it shall be presumed that the injury
was not occasioned
solely by the intoxication of the injured employee. The
Employer's medical expert
testified that intoxication was the primary cause of death
but the ALJ
concluded, and the Board affirmed, that such opinion did not
establish intoxication
as the sole cause of death, the judge noting "further
that walking on
a mooring line to a floating vessel, which is risky in any
condition, might have
caused decedent to fall and that the bruises on decedent's
forehead and chest, which
were listed in the autopsy report, suggest a reason other than
drunkenness for the
decedent's failure to swim ashore." Birdwell, supra
at 323-324.
(4) There is a very interesting set of facts
involving both
the so-called "coming and going rule and the intoxication
clause under
discussion in this presentation. In Oliver v. Murry's
Steaks, 21 BRBS
348 (1988), the Board's summary of the facts is as follows:
"Claimant worked as a refrigeration mechanic, repairing and
maintaining
equipment at employer's main plant and other locations. Employer
provided
claimant with a van in which claimant carried his tools and other
work-related
equipment. Claimant was on call twenty-four hours a day, and no
restrictions were
placed on his use of the van. At 9:15 p.m. on August 25, 1980,
the van, driven by
claimant, collided with a tractor-trailer at a location close to
the main plant. It is
not disputed that claimant was drinking beer at a bar close to
the plant at about
6:00 p.m., and blood alcohol tests indicated that claimant was
intoxicated at the
time of the accident. The parties presented conflicting evidence
regarding
claimant's whereabouts immediately before the accident. Claimant
asserted that he
left the bar and returned to the plant shortly after 6:00 p.m. to
perform further
work. Employer asserted that claimant never returned to work
after arriving at the
bar.
"In a Decision and Order dated May 17, 1982, the
administrative law
judge determined that even if claimant had returned to work after
leaving the bar,
his arrangement with employer regarding the van did not satisfy
the 'trip payment'
exception to the 'coming and going' rule. The administrative law
judge therefore
determined that the accident did not occur in the course of
claimant's employment
and that he was not entitled to compensation. Claimant appealed,
and in a Decision
and Order dated March 5, 1985, the Board held as a matter of law
that the trip
payment exception applied to the van arrangement between claimant
and employer.
Oliver v. Murry's Steaks, 17 BRBS 105, 107 (1985). The
Board
concluded that the real issue in the case was whether claimant
was in fact leaving
work at the time of the accident, or whether in light of the
blood alcohol test results
and other evidence, he had abandoned his employment-related
duties and status and
embarked on a personal mission of his own. Id. at 108.
The Board
stated that if claimant had embarked on a mission of his own, no
compensation
would be payable. Id. The Board therefore remanded the
case for the
administrative law judge to make a finding as to whether claimant
was leaving
work at the time of the accident and, if he found that the injury
occurred in the
course of claimant's employment, to consider the applicability of
Section 3(b) of
the Act, 33 U.S.C. §903(b) (1982). (footnote omitted).
"On remand, the administrative law judge determined
that the evidence
established that claimant had not returned to work after leaving
the bar.
Consequently, the administrative law judge concluded that
claimant's injury did not
arise in the course of his employment. The administrative law
judge also found
that even if claimant were leaving work at the time of the
accident, his speeding
while driving intoxicated was the cause of the accident. The
administrative law
judge thus determined that compensation would be barred by
Section 3(b). On
appeal, claimant argued that the administrative law judge's
findings were not
supported by substantial evidence and are contrary to law."
Oliver,
17 BRBS 259 (ALJ)(1985) The record reflects that claimant's
blood serum alcohol
level was .195% grams per decaliter concentration, a level which
under the State
of Maryland laws indicated intoxication. Oliver, supra at
262 (ALJ)
The Board affirmed the ALJ's conclusion that the injury did
not arise in the
course of the employee's employment as he had severed the
employment nexus by
embarking on a personal mission. As the employee had not
established a work-
related injury, the Board declined to address the Section 3(c)
issue. Oliver,
supra, 21 BRBS at 349-350.
(e) In Sheridon v. Petro-Drive ,
Incorporated,
18 BRBS 57 (1986), the Board reversed the denial of benefits,
pursuant to Section
3(c), holding, "In light of the express statutory
requirement that the injury
must be 'solely' due to intoxication and the presumption against
such (in Section
20(c)), it is clear that employer has the heavy burden of
virtually ruling out all
other possible causes of injury before the intoxication defense
is proven. As stated
in reference to the similar intoxication defense statute in the
New York Workers'
Compensation Act, intoxication will defeat a claim only when all
the evidence and
reasonable inferences flowing therefrom allow no other rational
conclusion than that
the intoxication was the sole cause." Milz v. J&R
Amusement
Corporation, 96 A.D. 2d 607, 464 N.Y.S. 2d 605, 606 (1983).
According to the Board, "the contours of this burden
have been
outlined by the New York Court of Appeals as follows: If the
employer seeks to
establish that intoxication was the sole cause of the accident,
the burden is upon
him to offer substantial evidence from which reasonable persons
would reasonably
draw the inference (a) that the employee was drunk at the time of
the accident; (b)
that he fell owing to his drunkenness and was injured. . .
Shearer v. Niagara Falls Power Company, 242 N.Y. 70, 73,
150 N.E.
604, 605 (1982). The presumption falls out of the case when the
employer proffers
substantial rebuttal evidence and, at that point, Section 3(c)
may apply to bar
recovery if the ALJ, based on the record as a whole, finds that
the intoxication
defense is proven. Sheridon, supra at 59.
In Sheridon, what is noteworthy is that the ALJ
determined that
evidence of claimant's intoxication at the time of his injury was
"sufficient
to rebut the statutory presumption" and the judge concluded
that, because the
precise events of the injury are unknown, there was no
substantial evidence of any
other factor that contributed to claimant's fall, and claimant's
injury was therefore
occasioned solely by intoxication.
However, the Board reversed the judge with these words:
"We hold
that this analysis is incorrect because it rests on a
misapplication of the statutory
presumption. The administrative law judge erred in relying only
on the fact that
claimant was intoxicated to rebut the presumption. Proof of an
employee's
intoxication is, alone, insufficient to rebut the Section 20(c)
presumption, even if
drunkenness is the primary cause of the injury. See
Birdwell, 16 BRBS
at 323; Loucks v. Joy Automatics, 54 A.D. 2d 1037, 388
N.Y.S. 378
(1976). The employer must additionally proffer evidence that
claimant fell owing
to his intoxication, and must rule out all other causes.
Although the employer need
not negate every hypothetical cause, see Majune v. Good Humor
Corp.,
25 A.D. 2d 849, 273 N.Y.S. 2d 819, 820-1 (1966), it must
present evidence
that permits no other rational conclusion but that claimant's
intoxication was the
sole cause of injury. Further, the administrative law judge must
give claimant the
benefit of the presumption, where, as here, there are substantial
doubts as to what
actually happened and no direct proof of claimant's actions which
caused him to
fall. Shelton v. Pacific Architects and Engineers, Inc.,
1 BRBS 306,
314 (1975). We note, in this regard, that claimant did not
remember the
circumstances of the accident. Also, an employer's witness saw
claimant fall, but
did not offer consistent testimony on whether the board on which
claimant had
been standing was covered by the same oil and hydraulic fluid
that contaminated
the rest of the work area."
According to the Board, "In light of the administrative
law judge's
finding that the precise sequence of events causing the injury
are not known, and
because he failed to properly apply Section 20(c) and did not
rule out other
possible causes of injury, we are unable to conclude that
substantial evidence
supports the administrative law judge's finding that the
claimant's intoxication was
the sole cause of his accident. We note that the employee's
working conditions
could suggest a reason other than the claimant's intoxication for
the fall. Claimant
was perched on a narrow board that rested on two beams. There is
evidence that
the hydraulic hammer operated by claimant leaked and sprayed oil
over the general
area where claimant worked. Claimant had been offshore for over
twenty days, and
was beginning a second shift on the day he was injured. The
opening through
which he fell was not protected by a safety net. See
Birdwell, 16 BRBS
at 324.
"Accordingly, we vacate the administrative law judge's
finding that
claimant's intoxication was the sole cause of his accident, and
remand this case for
a proper application of the presumption contained in Section
20(c). On remand, the
administrative law judge should also consider the issue of
jurisdiction under Section
2(3) and 3(a), 33 U.S.C. §§902.(3); 903(a), in light of
the Supreme
Court's recent decision in Herb's Welding, Inc. v. Gray,
470 U.S. 105
S.Ct. 1421 (1985)." Sheridon, supra at 60-61. This
case is also
noteworthy for the further fact that the Board, sua
sponte, raised the
issue of subject matter jurisdiction during the appeal, an issue
to which the parties
had stipulated and which stipulation had been accepted by the
judge.
(a) In Fortran v. Triple A Machine Shop,
15
BRBS 404 (ALJ) (1983), the Administrative Law Judge held that the
employee's
work-related injury was not "convincingly" shown by the
evidence to
be solely caused by the employee's intoxication. The employee
had been injured
when a loaded pallet fell from a crane as it was being hoisted
and struck him in the
face and right hip. There was some evidence that the employee
had alcohol on his
breath at the time of the accident and an assistant foreman found
a partly consumed
bottle of whiskey in the electrician's storage box adjacent to
the area where the
employee worked, the judge pointing out that many other workers
had access to
that box and it was never established that the bottle belonged to
the employee.
Accordingly, the judge, citing the then Section 3(b), held that
the "evidence
does not convincingly show that the accident was solely
occasioned by the
employee's intoxication," concluding, "The presumption
is that it was
not." Fortman, supra at 405-406.
(2) In Bastendorf v. Jones Oregon
Stevedoring
Co., 19 BRBS 618 (ALJ)(1987) the ALJ held, as a matter of
law, that the
employer did not present substantial evidence to support a
finding that claimant's
intoxication was the sole cause of his injury and, as the
employer did not sustain
its burden of proof, the claim was found to be compensable. In
this case, there was
evidence that the "walking boss" had talked to the
employee prior to
the injury and had asked the employee to leave the ship as he
"acted like he
might have been under the influence." However, the
supervisor had not seen
the employee take a drink and, in fact, he had seen the employee
leave the area
unassisted, walk down the deckload of logs to the ladder, climb
onto the ladder and
he was able to descent the ladder safely. Another "walking
boss" gave
similar testimony. However, according to the judge, "There
is no evidence
that either Harvey or Karavanich took any further action with
regard to the
claimant's condition, either by way of assistance or
discipline." The claimant
testified that he had two drinks at the morning coffee break, had
two beers at lunch,
as well as another drink in the interim before lunch. The
accident happened about
3:30 p.m., and claimant went home to rest. However, to relieve
his pain, he had
several additional drinks and at the time of his 7:00 p.m.
examination in the
Emergency Room, his alcohol blood level was 0.35, indicating
"acute
alcoholic ingestion," according to the physician.
Bastendorf, supra
at 621-622 (ALJ)
According to the ALJ, "In light of the statutory
requirement that the
injury must be "solely" due to intoxication and the
presumption against
such a finding, it is clear that Jones Oregon had the heavy
burden of virtually
ruling out all other possible causes of injury before it would
carry the burden of its
intoxication defense on this claim. Proof of an employee's
intoxication is, alone,
insufficient to rebut the presumption of Section 20(c), even if
drunkenness is the
primary cause of the injury. SeeBirdwell v. Western
Tug and
Barge, 16 BRBS 323 (1984); Loucks v. Joy Automatics,
54 A.D.2d
1037, 388 NYS 378 (1976)." The judge then concluded that
"although
claimant was drinking during his work shift with Jones Oregon, at
the time of his
fall, he was not so inebriated that his fall was caused solely
by
intoxication. It is immaterial as to what the claimant had to
drink by way of
intoxicants after his injury. Both Bastendorf's testimony, and
that of his neighbor
Orville Warrick, was that his drinking after his injury was
considerable. This
drinking or what his blood level of alcohol tested to be hours
after his injury is not
controlling," the judge concluding that claimant's fall and
resulting injuries
were not solely caused by intoxication.
According to the judge, "Jones Oregon has not met its
burden of
showing that claimant fell solely due to his intoxication
and did not rule
out all other causes, which is its heavy burden of proof. In
order to prevail in its
defense, Jones Oregon had to present evidence that permits no
other rational
conclusion but that claimant's intoxication was the sole
cause of the
injury, which it has not done. Although it was argued by
employer that claimant
did not remember the exact circumstances of the accident, there
was an eye witness
to claimant's fall, and his testimony was unchallenged by Jones
Oregon. As a
matter of law, Jones Oregon presented no substantial evidence
which would support
any finding. . . that claimant's intoxication was the sole
cause of his injury
and, therefore, it has failed in its burden of proof."
Thus, this claim was
found to be compensable. Sheridon v. Petro-Drive, Inc.,
18 BRBS 57
(1986)." Bastendorf, supra at 625 (ALJ).
(Emphasis
added)
(c) In Milosevich v. Metropolitan Stevedore
Co.,
21 BRBS 114 (ALJ) (1988), the ALJ found that the claim was
not barred by
Section 3(c) because although the alcohol in the employee's
system produced some
impairment at the time of the accident, it was not the
sole cause of it, as
the uncontroverted evidence clearly established that slippery
conditions was another,
if not the primary, cause of the injury. According to the ALJ,
the salient evidence
in this case supporting a finding regarding
"intoxication," which is not
defined in the Act, is claimant's testimony that he consumed two
12-oz. beers at
"lunch" between 10:00 and 11:00 p.m.; that he also had
had two mixed
drinks of bourbon and coke at home at about 3:30 p.m. before
reporting to work
at 6:00 p.m.; the evidence that the paramedic and hospital
admission report noted
the smell of alcohol on claimant's breath; and that in the
opinion of Martin Breen,
a forensic alcohol analysis and interpretation expert, claimant's
blood alcohol level
at the time of injury must have been sufficient to cause
"mental and physical
impairment [affecting his coordination, visual acuity and
judgment of risks] to a
significant measurable degree."
On the other hand, the record also contains the testimony of
co-worker David
DeVries to the effect that he preceded claimant into the hold and
almost fell
himself due to the slippery conditions there and that he observed
no signs that
claimant was intoxicated either before or immediately after his
fall; the testimony
of Patrick Andrich, stevedore superintendent at the time, who
took photos of the
accident immediately after it happened "to illustrate how
this surface can be
slippery," and the acknowledgment by employer's expert
witness Breen that
such impairments as he felt claimant had were not sufficient to
be the only cause
of the accident."
According to the judge, " the totality of the record on
this question
only supports a finding that the alcohol in claimant's system
produced some
impairment(s) as of 11:00 p.m. on August 30, 1985, but even
Breen's testimony,
taken as a whole, does not constitute substantial evidence to
rebut the section 20(c)
presumption. As indicated, Breen clearly acknowledged alcohol
was not the
sole cause of the accident. Moreover, assuming for the sake
of argument, that
the presumption were rebutted, (the judge further found) that
alcohol was not the
sole cause of claimant's accident, because the
uncontroverted evidence
regarding the slippery conditions establishes that that was
another, it not the
primary, cause of the injury." Accordingly, the claim was
held to be not
barred by Section 3(c) of the Act. Milosevich, supra at
117 (ALJ).
(e) In Brown v. Old Dominion Stevedoring
Corp., 26 BRBS 198(ALJ) (1992), the ALJ held as follows:
"There was
no evidence submitted that the claimant was intoxicated at the
time he sustained the
fall. There was no evidence submitted that the claimant did not
have sufficient
control of his faculties on the date in question nor any direct
proof that there was
something about the claimant's actions that caused him to fall.
On the other hand,
the claimant himself testified that he was not intoxicated on the
date in question.
Although Dr. van Slyke recorded that the claimant had a history
of alcohol abuse
and opined that the claimant's "seizures are secondary to
alcohol abuse",
I can not pile inference upon inference to come to the conclusion
that the claimant
was intoxicated on the date in question. Furthermore, the
presumption can only be
overcome by substantial evidence that the Claimant was
intoxicated at the time of
his injury and that his injury was caused solely by
his
intoxication. See Shelton v. Pacific Architects &
Engineers, Inc.,
1 BRBS 306 (1975) citing Maryland Casualty Co. v.
Cardillo, 107 F.2d
959 (D.C. Cir. 1939). I cannot expand upon the meaning of the
word intoxication
to include seizures resulting from a history of alcohol abuse.
As a result, I find
that the Employer's argument has failed. As the Employer has not
advanced
another argument to burst the Section 20(a) presumption, I find
that the Claimant's
fall from the tow motor was a work-related injury."
(Emphasis
added)
Brown, supra at 205 (ALJ).
(e) In Bournes v. United States Maritime
Services, 28 BRBS 350 (ALJ) (1994), my colleague here at the
Metairie
District Office, held that the claimant had suffered a
work-related injury for which
he established a compensable claim under Section 20(c) of the
Act, that the
Employer had not sufficiently rebutted the Section 20(c)
presumption to disallow
the claim under Section 3(c) because the evidence was
insufficient to establish that
claimant was intoxicated on the job on the date of his injury,
much less that
intoxication was the sole cause of his injury that day.
According to the judge, the
"employer's own witnesses do not support the position that
claimant was
intoxicated on the job" on the date of his injury. While
the Employer did
present "evidence that Claimant tested positive for cocaine
metabolytes"
on the day after his injury, the "claimant's urinalysis drug
screen was
inconclusive on the issue of intoxication. (citations to the
record omitted) Other
than the inconclusive drug screen, employer has offered no
medical evidence to
support an inference that Claimant was intoxicated on the
previous day at
work." Bournes, supra at 359 (ALJ).
6. SECTION 5(B) OF THE LONGSHORE ACT AS
AFFECTED BY SECTION 3(C)
A longshore worker who was injured when he fell from a
ladder sued the
vessel owner, pursuant to Section 5(b) of the Act, for
negligently installing an
unsafe ladder and for failing to warn the worker of the potential
danger. A Federal
District Court Judge awarded judgment to the vessel owner and the
Court of
Appeals for the First Circuit affirmed in Keller v. United
States of
America, 38 F.3d 16 (1st Cir. 1994).
The First Circuit Court, in affirming the lower court, held
that the District
Court Senior Judge properly considered the worker's
blood-alcohol level at the
time of the accident because evidence of high blood-alcohol level
could not be
divorced from the threshold question whether defective design
rendered the ladder
from which the longshore worker fell unreasonably dangerous.
The Court, in discussing the intoxication defense under the
Longshore Act,
pointed out that a stevedoring company may defend by proving by
substantial
evidence that the worker's injuries were caused
"solely" by
his intoxication as the worker enjoys a rebuttable presumption
against such a
finding, pursuant to Section 20(c). Similarly, in a Section
905(b) negligence
action, the trial court may assess the quality of the vessel
owner's rebuttal evidence
(1) where the longshore worker failed to demonstrate a vessel
defect and (2) where
the vessel owner has proferred "substantial" evidence
of the longshore
worker's intoxication. The evidence in the case reflected a
written policy by the
company that workers cannot report to work while intoxicated and,
thus, the
worker's blood-alcohol level is relevant to whether the ladder
constituted an
"unreasonably" dangerous condition since the vessel
owner reasonably
could rely on compliance with the company's policy on
intoxication. Keller,
supra at 30.
Nebraska provides the statutory defense in those claims
where the employee
was injured "by reason of being in a state of
intoxication." Benefits
were awarded to a truck driver who was injured when his truck
swerved off the
road. In Nalley v. Consolidated Freightways, 282 N.W. 2d
47 (Neb.
1979), the Court affirmed the award of benefits because although
the accident could
have been caused by the employee's intoxication, the burden of
proof was on the
employer, and the employer has failed to prove this causation.
According to the
Court, the accident just as probably occurred because the
employee fell asleep or
because the truck was not functioning properly. The record
reflects that the
claimant's blood alcohol content level was .142%.
In most jurisdictions, evidence of blood or brain alcohol
content is admissible
and is the most objective evidence possible on the issue of
intoxication. See
e.g., J.H. Rose Trucking Co. v. Bell, 426 P.2d 709 (Okla.
1967) (removal of
a blood sample from the body without authorization does not
violate the state
constitutional provisions against self incrimination). But
cf. R.W. Rine
Drilling Co. v. Ferguson, 496 P.2d 1169 (Okla. 1972)(Results
of a blood test
taken to determine intoxication pursuant to a statute governing
motor vehicle
operation were held inadmissible in a workers' compensation case,
since the statute
specifically provided that the results of such a test could not
be used as evidence
in a civil action). In Smith v. State Roads Commission,
240 Md. 525,
214 A.2d 792 (1965), the Maryland Court of Appeals held that the
presence of 0.27
percent alcohol in the blood, shown by autopsy, was proof of
intoxication, since in
Maryland drunken driving prosecutions 0.15 percent is prima
facie
evidence that the defendant was under the influence of
intoxicating liquor. In
Smith, the doctor testified that a 0.27 percent
blood-alcohol level
indicated that the person was "highly intoxicated" and
that many people
"pass out" at that level, a level amounting to a pint
of one hundred
proof whiskey.
An interesting case is Coonce v. Farmers Insurance
Exchange,
228 S.W.2d 825, 828 (Mo. App. 1950), wherein compensation
benefits were
awarded in spite of evidence of considerable drinking and of
"weaving on the
highway" prior to the accident, the court holding:
We cannot deny compensation because of
intoxication, at
least unless it was shown that the degree of
intoxication was
such that it could be held that the injury did not
arise out of the
employment because the employee could not have been
engaged
in it. Employers will have to enforce their rules
against
drinking by discharging offending employees or by such
other
disciplinary measures as they see fit to adopt.
However, by way of caution, I would like to direct your
attention to the facts
of a particular case involving a work-related back injury,
drinking on the job and
subsequent termination. In Scroggins v. Corning Glass
Co., 283 Mich.
628, 172 MN.W. 2d 367 (1969), the claimant suffered a compensable
back injury
and, after surgery, returned to work for the same employer. He
was later
discharged for working while drunk, but claimed that his drinking
was the only
way he could alleviate the pain resulting from the original
injury. An award of
benefits resulting from the claimant's firing was affirmed as his
intoxication was
held not to constitute willful misconduct.
Those of you practicing as defense counsel in the state of
Texas seem to
have the easiest burden because Rev. Civ. Stat., Art. 8309,
§1(1959), requires
only a showing that the claimant was intoxicated at the time of
the injury, and the
courts have held that any discussion of causal connection between
the intoxication
and the accident is irrelevant. Thus, in Texas Indemnity
Insurance Co. v.
Dill, 42 S.W.2d 1059 (Tex. Civ. App. 1931), 63 S.W. 2d 1016
(1933), a jury
had made two findings; first, that the Decedent was intoxicated
and, second, that
the intoxication did not contribute to the injury. The Appellate
Court struck out the
second finding as immaterial and reversed the compensation award.
Louisiana states a simple causal relation test by denying
compensation
benefits for injuries caused by an employee's
intoxication. Thus, in
Smith v. Datachem, 540 So. 2d 1282 (La. Ct. App. 1989),
the Court,
concluding that benefits were properly denied as the injury
was caused by the
worker's intoxication, held that the statute did not
unconstitutionally
discriminate against alcoholics. Accord Gore v. City of
Pineville, 598
So. 2d 1122 (Ct. App. 1992), writ denied, 600 So. 2d 681
(La.
1992)(benefits were denied as the claimant was intoxicated at the
time of the
accident and the intoxication proximately caused his
injuries).
An interesting recent case here in Louisiana involved a
worker who was
injured when he fell from a ladder and benefits were denied as
the workers'
compensation commission concluded that the accident was caused by
his
intoxication. This denial was affirmed on appeal because the
worker failed to
overcome the presumption under LA. RS §23.1081 that his
intoxication
caused his fall. According to the Court,
FOR PURPOSES OF THE STATUTE, AN
EMPLOYER NO LONGER BEARS THE BURDEN
OF PROVING THE ACCIDENT WAS CAUSED BY
THE EMPLOYEE'S INTOXICATION. NOW, THE
EMPLOYEE MUST REBUT THE PRESUMPTION
BY SHOWING HIS INTOXICATION DID NOT
CONTRIBUTE TO THE CAUSE OF THE
ACCIDENT.
However, it has been held that an injury is not "caused
by"
intoxication when an intoxicated claimant's verbal abuse led a
co-worker to assault
him, the court holding that "caused" in the statute
meant proximately
caused by the intoxication, as when a worker attempts to operate
machinery when
drunk. Conley v. Travelers Insurance Co., 53 So. 2d 681
(La. App.
1951).
As can readily be seen, the intoxication defense presents a
heavy burden on
the employer and this difficulty is best summed up by the case of
Kulinka v.
Flockhart Foundry Co., 9 N.J. Super. 495, 75 A.2d 557 (L.
Div. 1956),
involving a fall by an employee injured attempting to enter a
crane. The court
awarded benefits based on its reading of the statute requiring
"sole"
causation on the force of the word "the." The court
explained: Has the
employer shown by the preponderance of all of the evidence in the
record that
Kulinka's intoxication was "the natural and proximate
cause" of his
injury?
"The article "the" in this statutory context
is a word of
exclusion. It means that in order to defeat recovery the
employer must show by
the greater weight of the evidence that the employee's injury was
produced
solely by his intoxication. In other words, the
employment must supply
no more than the setting, the stage, the situation in which the
fall occurred; it can
be no more than an inactive condition as distinguished from a
moving cause If the
hazards or risks which are incidental to the employment concur
with the employee's
insobriety in producing the fall or if the hazards of risks
contribute efficiently to
the production of the fall, compensation cannot be denied. If
the legislature
intended intoxication as a concurrent or contributory cause of an
injury to effect a
deprivation of the benefits of the statute, it would have been a
simple matter to
have said so."
Id. at 505, 75 A.2d at 562 (emphasis in original).
Likewise, in New York, the lack of success in invoking the
intoxication
defense is illustrated by the following cases. In Cliff v.
Dover Motors,
Inc., 11 App. Div. 2d 883, 202 N.Y. 2d 914 (3d Dep't 1960),
aff'd,
9 N.Y. 2d 891, 175 N.E. 2d 831, 216 N.Y.S. 2d 703 (1961), an
autopsy disclosed
0.291% alcoholic content in the brain of the deceased salesman.
The court
confirmed the findings of the board that intoxication was not the
sole cause of the
accident.
In Cliff, the New York Court of Appeals affirmed the
award of
benefits with these words: the evidence, including evidence
relating to an autopsy
disclosing alcohol in salesman's brain in an amount sufficient to
indicate
intoxication and to salesman's activities in behalf of the
employer, warranted the
finding that the unwitnessed accident arose out of employment and
was not caused
by personal activities constituting a deviation therefrom and was
not
occasioned solely by intoxication." The board
rejected the
employer's defense that since decedent gave no evidence of
intoxication during his
telephone conversation with his employer, he must have consumed a
considerable
number of drinks in a short period of time thereafter and that
such an indulgence
in personal activities constituted a deviation from employment.
The Appellate
Division then noted that the compensation board was not bound to
accept the
inferences which the employer would draw and "there seems to
us substantial
evidence supportive of its determination on the issue of
employment. Neither may
we, upon this record, disturb the finding that the unwitnessed
accident was not
occasioned solely by intoxication." An alcohol blood level
of 0.291%,
according to the employer's medical expert, constituted
"acute
alcoholism" and would have required 8-12 ounces of alcohol
to reach that
level.
In Malloy v. Cauldwell Wingate Co., 284 App. Div.
798, 135
N.Y.S. 2d 445 (3d Dep't 1954), aff'd, 308 N.Y. 1031, 127
N.E. 2d 867
(1955), compensation was awarded for the death of an intoxicated
night watchman,
whose normal post of duties was outside of the building, even
though his body was
found inside the building and death occurred after his hours of
duty.
In Malloy, the Workers' Compensation Board held that
the
employee's death was due to an industrial accident and was not
due solely to
intoxication. The Appellate Division affirmed the award of
benefits because
the "evidence, together with statutory presumptions, was
sufficient to support
the board's finding that death of a night watchman, who was found
on employer's
premises on a floor lower than the one on which he regularly
worked and whose
death was caused by a fracture of the skull, arose out of and
occurred in the course
of employment in the absence of any indication as to how he
was injured
or exact proof as to time of injury." Moreover, in view
of the
traumatic nature of the injury which caused the death, the board
could have given
due weight to the additional presumption that intoxication was
not the sole
cause of the injury." (Emphasis added)
The dissenting judge pointed out that "at the time he
was injured, the
decedent was not engaged in any service for the employer. His
work hours had
ended; he had not been ordered or authorized to work overtime; he
was not at his
regular work place; he had been seen prior to the accident in a
position which
negatived any inference that he might still be at work. Thus,
the Section 21
presumptions are not applicable herein."
In Brame v. Alcar Trucking Co., 31 App. Div. 2d 881,
297
N.Y.S. 2d 378 (3d Dep: 1969), the decedent's truck broke down,
and while crossing
an expressway to reach a second truck which had been sent to pick
him up he was
struck and killed. An autopsy revealed a 0.31% blood alcohol
concentration, a
level which would have seriously impaired motor function judgment
and visual
perception. However, as the testimony of witnesses who had
observed the decedent
immediately prior to his death was not produced, a finding that
death was not due
solely to intoxication was held supported by the evidence,
and an award
of death benefits was affirmed.
Similarly, a window washer who fell after having been
drinking was entitled
to benefits as his injury was not sustained solely because
of his drinking
but because of the dangerous character of his work.
Department of Taxation
& Finance v. De Parma, 254 App. Div. 615, 3 N.Y.S. 2d 120
(3d Dept.
1938).
In McCue v. Studebaker Automotive Sales, 389 S.W. 2d
408
(Mo. 1965), the decedent, an automobile salesman, was killed
while on his way to
meet a prospective customer. Although he had been drinking and
had a blood
alcohol level of .175%, an award of compensation benefits was
affirmed as the
commission ruled that he still had been performing his duties,
even after drinking,
the commission rejecting the defense that the decedent did not
die in the course of
his employment because of his drinking.
O'Neal v. Home Insurance Co., 404 So. 2d 1355, 1357
(La. App.
Second Cir. 1981), writ denied, 409 So. 2d 655 (1982), is
noteworthy for
this holding: Although the evidence supported a finding that
the workers'
compensation claimant was intoxicated at the time of the accident
wherein he
slipped and injured himself, the employer failed to bear its
burden of proving that
the accident and resulting injuries were caused by claimant's
intoxication and, thus,
claimant was entitled to benefits, as a slip and fall accident
was not of a type such
that the accident itself would infer intoxication as its
cause. According
to the court, this slip and fall accident was of a commonplace
nature- -slipping or
losing one's balance while going down wet stairs- - is an
accident which occurs
with some frequency to even the most sober, careful persons.
However, an alcohol blood content level of 0.25 percent at
the time of the
employee's automobile accident was sufficient to prove
intoxication and that the
intoxication more likely than not caused the accident. Conley
v. Liberty
Mutual Insurance Co., 421 So. 2d 254 (La. App. Fourth Cir.
1982), writ
denied, 427 So. 2d 1209 (1983).
Likewise, benefits were denied an employee where the record
supported the
conclusion that the employer had proved by a preponderance of
the
evidence that the claimant's intoxication was a substantial
cause of his job
related injury, an injury which ordinarily would not have
happened but
for the intoxication. Frost v. Albright, 460 So. 2d
1125 (La. App.
Second Cir. 1984), writ denied, 464 So. 2d 1266 (1985).
Moreover, where there are two permissible views of evidence
in a workers'
compensation case, the fact finder's choice can virtually never
be manifestly
erroneous or clearly wrong. Stutes v. Koch Services, 649
So. 2d 987
(La. App. Third Circuit 1994).
The manifest error-clearly wrong standard demands great
deference to the
findings of the trier of facts because only the fact finder can
be aware of variations
in demeanor and tone of voice that bear so heavily on listener's
understanding and
belief in what is said. Smith v. Radisson Suite Hotel New
Orleans, 650
So. 2d 333 (La. App. Fifth Circuit 1995). However, the appellate
court is not
required to affirm the trier of fact's refusal to accept as
credible
uncontradicted testimony where the record indicates no
sound reason for
its rejection and where the factual finding itself has been
reached by overlooking
applicable legal principles. Id.
In Mississippi the viability of the intoxication defense
depends upon whether
the injury or death was "occasioned by" intoxication.
Ms. Code Ann.
§6998-04 (1952).
In Murphy v. Jac-See Packing Co., 208 So. 2d 773
(1968), the
court held that the evidence sustained a finding of the Worker's
Compensation
Commission that the employer had failed to prove that a
salesman's intoxication
was the proximate cause of the fatal auto accident. In
Reading & Bates,
Inc. v. Whittington, 208 So. 2d 437 (1968), substantial
evidence supported
the finding that the employee's intoxication was not a
contributing factor to the
accident.
The Workers' Compensation Commission, not the administrative
judge, is the
ultimate fact finder and the appellate court will apply a general
deferential standard
of review to the Commission's findings and decisions despite the
actions of the
administrative judge. Thus, the court will defer to the
Commission's findings
unless the Commission commits prejudicial error. Lanterman v.
Roadway
Express, 608 So. 2d 1340 (Ms. 1992). As long as the
Commission's decision
contains no error of law and is based on substantial evidence,
the Mississippi
Supreme Court will not disturb its findings as the Commission is
the ultimate finder
of facts in compensation cases and, as such, its findings are
subject to normal,
deferential standards upon review. Natchez Equipment v.
Gibbs, 623
So. 2d 270 (1993).
D. VOLUNTARY INTOXICATION AND INTENT
TO HARM ONESELF
Cases dealing with the issue of voluntary intoxication and
an employee's
injury also sometimes consider the other important provision of
Section 3(c) of the
Longshore Act, i.e., "No compensation shall be
payable if the injury
was occasioned. . . by the willful intention of the employee to
injure or kill
himself or another." However, you employers' or defense
counsel out there
should not rush to judgment now believing or thinking that you
have a double-
edged statutory defense in the type of claims under discussion.
Attempts to treat
drinking, in violation of the employer's rules, as "wilful
misconduct"
under this statutory defense have generally been unsuccessful,
usually for lack of
clear causal connection between the drinking and the injury. A
good example of
these cases is Chancy v. Pope, 136 Ga, App. 826, 222 S.E.
2d 667
(1975), wherein the decedent was killed when the crop-dusting
plane he was
piloting crashed. The court held that the fact that the decedent
had consumed two
cans of beer about six hours before the crash in violation of FAA
regulations was
not enough to deny death benefits due to wilful misconduct,
because there
was no evidence that the beer consumption proximately caused the
death.
In conclusion, it is apparent that courts and administrative
agencies are
inclined to avoid a forfeiture of compensation benefits on the
basis of the
intoxication except when the defense is clearly made out.
Since
intoxication is an affirmative defense, the burden of proof of
intoxication and of the
requisite degree of causation is on the employer, and when there
is a conflict in the
evidence, a finding by the judge that intoxication was not the
cause of the accident
will usually be affirmed. Intoxication as the "sole
cause" of the injury
is the strictest type of statute and presents a severe burden of
proof. The majority
of attempts to invoke the defense have been unsuccessful and
there have been few
denials of compensation, even when the intoxication played a
substantial
part in causing the injury.
Can any general rule be inferred from this survey of cases?
I believe so and
I would offer the following for your consideration. If, in a
perfectly safe place, the
employee falls because he is drunk and injures himself, it is
clear that the injury
results solely from the intoxication and that compensation
benefits would
most likely be denied. Voluntary intoxication which renders an
employee incapable
of performing his work ordinarily is a departure from the course
of employment,
or the so-called "frolic" of his/her own. Under the
special statutory
defense of intoxication, the requisite causal connection between
intoxication and
injury varies among the statutes all the way from mere
existence of
intoxication at the time of injury to the requirement that
intoxicationbe the sole cause. To the extent that there is any room
for judicial
construction under these statutes, the courts will ordinarily
give the intoxication
defense as narrow a scope as the words will bear. This in line
with the prevailing
spirit of compensation law and administration, which minimizes
the element of
employee fault and maximizes the element of protecting the
security and families
of all workers.
Does this survey actually lead to the conclusion that the
intoxication defense
exists only on paper in the statute books? Yes, generally
speaking, unless there is
clear medical proof of intoxication and if there is no
substantial evidence that the
accident was caused by any other factor.