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Case # G0741447
Date of Accident: 06/07/2013
District Office: Binghamton
Employer: Alnye Cortland LLC
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 66442617-281
Date of Filing of Decision: 01/25/2017
Claimant's Attorney: Wayne M Chariff
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on December 20, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed October 21, 2015.

ISSUE

The issue presented for Mandatory Full Board Review is whether claimant's injuries were solely occasioned by intoxication from alcohol.

The Workers' Compensation Law Judge (WCLJ) found that the carrier failed to rebut the presumption that claimant's injuries did not result solely from his intoxication and established the claim for the head, neck and back.

The Board Panel majority affirmed the WCLJ decision.

The dissenting Board Panel member would find that the claimant's significant intoxication was the sole cause of his injuries and disallow the claim.

The carrier filed an application for Mandatory Full Board Review on November 10, 2015.

The claimant did not file a timely rebuttal.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

The claimant, a truck driver, was injured in a motor vehicle accident on June 7, 2013. The carrier controverted the claim, alleging that claimant's accident and his resulting injuries were solely occasioned by his intoxication from alcohol and therefore not compensable pursuant to Workers' Compensation Law (WCL) § 10(1).

According to the police accident report (doc. #214920425), the accident occurred at 10:09 P.M, on June 7, 2013. While travelling eastbound, the truck claimant was driving left the roadway off the south shoulder, struck a utility pole, continued along the shoulder and struck a "culvert head wall," then overturned and came to rest against a second utility pole. No other vehicles were involved in the accident.

Claimant was transferred by ambulance to Wilson Memorial Regional Medical Center, where he arrived at 11:55 P.M., and was treated in the emergency room for multiple injuries, including several spinal fractures which required surgical intervention. The emergency room report (doc. #223672489) indicates that upon arrival, claimant appeared "confused lethargic and disoriented to place and time. Patient slow to respond. Inaccurate responses to question and inconsistent responses to command" (p. 2). The emergency room report reflects that a urine sample was obtained from the claimant at 12:47 A.M. on June 8, 2013, which was analyzed and showed a blood alcohol content (BAC) of .29%.

Dr. Silverman performed a records review on behalf of the carrier. In his report dated May 25, 2014, Dr. Silverman noted that claimant's BAC reading after the accident "was 3 times the legal limit," and that a BAC of .30 "is considered extremely life threatening, with little comprehension of where you [are]." Dr. Silverman stated that claimant's BAC reading reflected "that his level of intoxication was extreme," and would have "significantly impaired" his "ability to operate a motor vehicle." Dr. Silverman concluded that "[t]here is absolutely no question that this is an accident that was caused by an individual using excessive amounts of alcohol and then attempting to operate a motor vehicle."

Claimant waived the opportunity to depose Dr. Silverman.

Claimant testified that he obtained a CDL A license, which permits him to drive tractor trailers, approximately four years earlier. He began working for the employer in February 2012, hauling milk. He had previously obtained an endorsement to his CDL license which permitted him to haul liquid. Driving a tanker full of liquid is different than driving a dry load because liquid moves, impacting your ability to stop and start. The liquid can "push" the truck. He was familiar with the road where the accident occurred having done that run quite a few times. His normal morning routine was to "[g]et ready for work, have a drink," of vodka (transcript, 12/9/13 hearing, p. 28). According to claimant, he takes a 16-ounce water bottle filled with vodka to work with him, to "get me through day" (id.). He sips the vodka throughout the day while working, to keep from getting ill, and has done so for years. He denied that he drank to get intoxicated. On the date of accident he did not have more alcohol to drink than he usually does. Claimant had no idea what caused the accident because he has no memory of it. He described the road where the accident occurred as a winding two-lane country road which did not have heavy traffic. The road had many areas with no shoulder or a very limited shoulder, and if you go off the shoulder even by a few inches, it could cause the load to shift.

On cross-examination claimant testified that he drank more than a pint of vodka in the 24 hours prior to the accident based on his usual consumption, but had no "exact recollection" (p. 38). He had been treated for alcoholism over 15 years earlier.

Trooper Hines of the New York State Police testified that he responded to claimant's June 7, 2013, accident. There was no precipitation at the time of the accident and the roads were fairly dry, although it had rained several hours earlier. According to Trooper Hines, claimant "didn't really know what was going on, he had sustained head trauma" (deposition, 2/11/14, Trooper Hines, p. 8). The road was straight where the truck had gone off the roadway. The shoulder was paved where the truck had gone off the road, there were no marks on the roadway and it appeared that the truck "had just rolled off the shoulder" (p. 26). He had walked the road and not seen any skid marks in the road, dead deer, or any objects that the truck might have hit. Trooper Hines did not believe that speed was a factor in the accident. According to Trooper Hines, State Troopers from the Binghamton patrol went to the hospital "to try to determine if there was any alcohol, anything like that was at play," but by the time they arrived, claimant "was already in the operating room and they were unable to ascertain any more information about it" (p. 52-53). The State Police "were never able to determine why exactly he left the roadway and what was at play" (p. 73). The police accident report did not list alcohol as a possible contributing factor in the accident because they "didn't have enough probable cause to seize his blood at that point in time" (p. 76). His examination of the truck indicated that claimant had not been wearing a seatbelt and claimant was ticketed for failure to use his seatbelt.

Trooper Daniels testified that she works in the commercial vehicles unit of the New York State Police. She estimated that she had arrived at the scene of claimant's accident between 11:45 P.M. and midnight on June 7, 2013. The claimant was no longer at the accident scene when she arrived. Her inspection of the truck did not reveal any defects with respect to the brakes or tires. She inspected the area where the truck went off the road and "it appeared that he went off the road in to - and then maybe tried to overcorrect, and the milk caused the tank to go on its side. He went down into the ditch" (deposition, 4/30/14, Trooper Daniels, p. 13). She could tell where the truck had left the roadway because there were marks on the road. The road was straight and had a slight downhill grade where the truck left the road. Trooper Daniels had no idea why the truck claimant was driving left the roadway. Crossing the "fog line" (the solid white line painted on the right side of the road) could cause the truck's load to shift. It was possible that the truck moved to the right of the fog line and been pulled into the ditch and not been able to get back on the road. Trooper Daniels did not remember seeing any deterioration of the shoulder in the area where the accident occurred during her investigation. During her investigation on the night of the accident, she did not see anything which suggested that the road was unsafe or needed to be repaired. Her review of the truck's onboard tracking data did not offer any insight into the cause of the accident.

Scott Hendershott was deposed and testified that he is self-employed and his business does "DOT compliance assistance, everything from records compliance to vehicle compliance, to accident investigation. Anything that needs to be dealing with the trucking industry" (deposition, Scott Hendershott, 5/23/14, p. 7). He had been self-employed since the beginning of 2014. He retired from the New York State Police in November 2013 after 33 years. When he retired he was the supervisor in charge of the Troop C commercial vehicle enforcement unit, where he had worked for 12 years. According to Mr. Hendershott, he had extensive training and experience in accident reconstruction. He had been retained by claimant's attorney to evaluate claimant's June 7, 2013, accident.

Mr. Hendershott testified that he had reviewed the truck's onboard tracking data and pictures of the accident scene taken in winter. He also personally visited the accident site on May 12, 2014, marked and measured the roadway and took photographs. He was still with the State Police at the time of claimant's accident and had assigned Trooper Daniels to investigate the accident. He reviewed the testimony of Troopers Hines and Daniels. Mr. Hendershott, referring to pictures of the accident site he had taken, testified that although the site had been described as straight by Troopers Hines and Daniels, it was actually a large sweeping curve. The shoulder of the road starts to diminish where the truck left the road. At one point near where the truck made impact and stopped, there is no shoulder, just a paved ditch. If a vehicle went over the fog line at that point, it would be difficult to return to the roadway, as the vehicle, especially a tractor trailer carrying liquid, would be drawn away from the road into the ditch. The truck's onboard tracking data showed that claimant was travelling at approximately 35 miles per hour, had his foot on the brake and was decelerating when the truck left the road. When asked if he had formulated an opinion as to what caused the accident, Mr. Hendershott responded, "I don't know what caused it other than for some reason it left the travel lane and went off over the fog line" (p. 50). He testified that "if you go off a shoulder of a road with a tanker, even a straight roadway and the tanker wheels go off a soft shoulder and you get at some point, you pass that center of gravity, it's going to go. There's nothing going to stop that. I believe that's what happens" (p. 51). If the culvert had not been there, claimant may have been able to recover the vehicle, but it was too steep and truck went over.

On cross examination, Mr. Hendershott testified that he was paid $125 per hour plus mileage by claimant's attorney to perform his evaluation of claimant's accident. He conceded that if a driver remained on the left side of the fog line where the accident occurred, he would not be pulled into the ditch. In his experience as a State Trooper, Mr. Hendershott had observed many people with a very high BAC that drove and functioned in a manner that did not indicate their intoxication. Some people who are legally intoxicated based on their BAC are not intoxicated functionally.

In a memorandum of law dated June 11, 2014, claimant's attorney stated that "claimant acknowledges that he was found to have a BAC of .29..." However, he argued that the carrier failed to rebut the presumption that claimant's injuries did not result solely from his intoxication, as the reason claimant had left the roadway was unknown, and could have resulted from a lapse in concentration, an oncoming car too close to the center line, an animal crossing the road, fatigue, cell phone use, "or a myriad of other distractions at a critical instance."

In an amended reserved decision filed on June 27, 2014, the WCLJ determined that the carrier had not rebutted the presumption that claimant's injuries did not result solely from his intoxication, by a preponderance of the credible evidence and established the claimant's claim for head, neck and back injuries. The WCLJ relied on the fact that the claimant was not seat belted and that there was no evidence indicating the seatbelt use probably would have been irrelevant to the injuries sustained by the claimant or that claimant would have been seat belted but for his intoxication.

The carrier requested administrative review of the WCLJ's decision. Claimant filed a timely rebuttal.

LEGAL ANALYSIS

WCL § 10(1) provides that "there shall be no liability for compensation . . . when the injury has been solely occasioned by intoxication from alcohol or a controlled substance of the injured employee while on duty." WCL § 21(4) creates a presumption that "the injury did not result solely from the intoxication of the injured employee while on duty," which can be rebutted by "substantial evidence to the contrary."

In Matter of Majune v Good Humor Corp. (26 AD2d 849 [1966]), the court held that:

"The proof of intoxication considered with the manner in which the accident happened constitutes the substantial evidence required to overcome the presumption found in section 21 of the Workmen's Compensation Law that the accident did not result solely from the intoxication of the employee." (Matter of Calka v Mamaroneck Lodge BPOE, 285 App. Div. 1093, mot. for lv. to app. den. 308 N. Y. 1053.)"

(id.).

In Matter of Majune, decedent was involved in a fatal motor vehicle accident when the truck he was driving crossed over the center line and collided head-on with an oncoming vehicle. The Board disallowed the resulting claim for workers' compensation death benefits, finding that the accident was caused solely by decedent's intoxication based on his BAC of .30%. In its decision affirming the Board, the court in Majune stated that "[i]t would be impracticable and unreasonable to require that the board decision, in addition to finding intoxication the sole cause, expressly negate each of the almost innumerable hypotheses that might come to mind as possible contributory factors" (id.).

In Matter of Harvey v Allied Chem. Corp. (51 AD2d 1066 [1976]), claimant sustained an unwitnessed fall at work and was found unconscious by coworkers. The Board disallowed the resulting claim for benefits on the ground that the injuries resulted solely from claimant's intoxication based on evidence that claimant had a BAC of .22% when treated in the hospital after the accident, and the absence of evidence of any other "cause for slipping, tripping or stumbling" (id.). The court in Matter of Harvey, affirming the Board, stated:

Where this [WCL § 21(4)] presumption is given effect, it may be overcome by substantial evidence to the contrary. The present record contains medical proof of intoxication. In addition to finding intoxication the sole cause, there is no need for the board to expressly negate all of the alternate hypotheses which might be considered as possible contributory factors. (Matter of Majune v Good Humor Corp., 26 AD2d 849; see Matter of McCall v Wayne Liq. Corp., 19 AD2d 758, affd 15 NY2d 929.) Clearly, the presumption has been overcome. "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." (Matter of Shearer v Niagara Falls Power Co., 242 NY 70, 73.).

(id.).

In this case, there is no dispute that the immediate cause of claimant's accident, and his resulting injuries, was that the truck claimant was driving drifted off the roadway. Claimant has no recollection of the accident and there is no direct evidence of why the truck drifted off the road. Claimant was an experienced driver who had driven loads of milk on the same route many times. There is no evidence that the vehicle was defective, or that a defect in the road or inclement weather caused the truck to leave the roadway. The record does show, however, that claimant had consumed alcohol prior to the accident, and had a BAC of .29 when tested in the hospital after the accident. According to Dr. Silverman, claimant's "level of intoxication was extreme," and would have "significantly impaired" his "ability to operate a motor vehicle" (May 25, 2014, report of Dr. Silverman).

The evidence of claimant's extreme intoxication, considered with the manner in which the accident occurred, supports a finding that claimant's accident was solely occasioned by his intoxication. Therefore, the Full Board finds that the preponderance of the credible evidence in the record supports a finding that claimant's accident was solely occasioned by his intoxication.

CONCLUSION

ACCORDINGLY, the WCLJ reserved decision and amended reserved decision filed June 27, 2014, are REVERSED and this claim is disallowed. No further action is planned by the Board at this time.