Skip to Content

Workers' Compensation Board

Language Assistance: (877) 632-4996 | Language Access Policy

 


Case # G1390890
Date of Accident: 07/21/2015
District Office: Hauppauge
Employer: Darr Construction Equipment
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 96128434
Date of Filing of Decision: 11/20/2017
Claimant's Attorney: Polsky Shouldice & Rosen PC
Panel: Clarissa M. Rodriguez

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on October 17, 2017, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed November 15, 2016.

ISSUES

The issues presented for Mandatory Full Board Review are:

  1. whether the transfer of the case to a different Workers' Compensation Law Judge (WCLJ) violated Workers' Compensation Law (WCL) 20; and
  2. whether the decedent's injuries which ultimately led to his death were solely occasioned by intoxication.

The WCLJ found that the decedent's injury that resulted in death was solely occasioned by intoxication from alcohol and controlled substances and disallowed the claim.

The Board Panel majority determined that no violation of WCL 20 had occurred as the prior WCLJs were not available, the presumption created by WCL 21(4) had been rebutted, that the decedent's accident was not work related, and that the WCLJ had properly disallowed the claim.

The dissenting Board Panel member would have established the claim.

The claimant filed an application for Full Board Review on December 15, 2016, arguing that the WCLJ who issued the underlying decision was the third WCLJ who presided over this case, which is a reversible error as it violates WCL 20. The claimant further argues that the evidence in the record is not sufficient to overcome the presumption that the accident arose in and out of the course of employment and that intoxication was not the sole cause of the accident.

The carrier filed a rebuttal on January 11, 2017, contending that there was no violation of WCL 20 as the prior WCLJs were unavailable. The carrier contends that it provided ample evidence to overcome any presumption of compensability, such as the accident report, the toxicology report, and the opinion of its consultant.

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

FACTS

On July 7, 2015, the decedent, a heavy equipment operator, was involved in a motor vehicle accident, when the pick-up truck he was driving crossed over a double yellow line and crashed into an oncoming box truck. The decedent sustained a serious injury to the left leg, which resulted in a subsequent left above-knee amputation and revision surgeries. On July 21, 2015, the decedent died as a result of complications from the injuries he sustained in the July 7, 2015, accident.

On August 14, 2015, the decedent's widow filed a form C-3 (Employee Claim), on behalf of the decedent, claiming work-related injuries resulting from the July 7, 2015, motor vehicle accident (WCB # G1281773), and a form C-62 (Claim for Compensation in a Death Case), claiming the July 21, 2015, death (WCB # G1390890).

The carrier controverted the claims on multiple grounds including that the injuries occurred solely due to the decedent's intoxication, and that the accident did not occur in the course of employment.

The MV-104 (Police Accident Report) indicates that the decedent "failed to maintain his lane and crossed over a double solid yellow line into [southbound] traffic and crashed into vehicle #1 causing damage." The report further indicated that at the time of the accident, it was still light outside, the road was straight and level, the roadway surface condition was dry, the weather was clear, and the decedent's failure to keep right and disregard for traffic control were the apparent causes of the accident.

The decedent's death certificate indicates that the decedent's immediate cause of death was pulmonary thromboembolism due to or a consequence of deep venous thrombosis of the right leg, which was due to or a consequence of blunt force trauma with factures of the left tibia and fibula, status post above-knee amputation.

A medical report from Nassau University Medical Center, dated July 7, 2015, indicated that the decedent had "abnormally high" levels of ethanol (alcohol), as well as abnormal levels of benzodiazepine, cocaine, and opiates in his system.

A hearing was held on March 1, 2016, in front of WCLJ Chanis. The claimant testified to being the decedent's lawful widow, and the decedent having four dependent stepchildren. In the corresponding notices of decision filed on March 4, 2016, in each case, WCLJ Chanis found that the claimant in WCB # G1281773 died on July 21, 2015, the claimant in WCB # G1390890 was the decedent's lawful widow, and the decedent had four alleged dependent stepchildren.

Dr. Robbins, the Medical Director of Nassau University Medical Center's laboratory, was deposed on March 21, 2016, and testified to the contents of the laboratory report.

A hearing was held on March 31, 2016, before WCLJ Zucker. The claimant's attorney raised the issue of WCL 20, upon noting for the record that the case was previously before another WCLJ. WCLJ Zucker indicated on the record that the prior WCLJ was not available and directed the parties to complete and submit deposition testimony of Dr. Perry. The WCLJ's directions were memorialized in notices of decision filed on April 11, 2016, in each case and amended on June 13, 2016, in WCB # G1390890.

The claimant filed an application for administrative review of the April 11, 2016, decision, contending that pursuant to WCL 20, the case should be returned to WCLJ Chanis, the original WCLJ who presided over the case.

The carrier filed a rebuttal contending that since no testimony was heard by the prior WCLJ involving the currently disputed issues, the transfer of the case to a new WCLJ did not violate WCL 20.

The decedent's medical records were examined by the carrier's consultant, Dr. Perry, on March 21, 2016, and a corresponding report was issued. Dr. Perry indicated that a July 7, 2015, toxicology report showed that the decedent tested positive for alcohol, benzodiazepine (a type of tranquilizer), cocaine and opioids. Dr. Perry noted that an ethanol level for the decedent was performed on July 7, 2015, which was abnormally high at a level of 43 milligrams per deciliter, with a normal range being less than 3 milligrams per deciliter. He noted that the record showed the decedent's vehicle crossed over double yellow lines for no apparent reason. Dr. Perry concluded that the decedent's "death occurred and was a result of intoxication due to drugs and alcohol."

Dr. Perry was deposed on May 12, 2016. He reviewed the decedent's toxicology report, which was positive for alcohol, benzodiazepine, cocaine, and opioids. Dr. Perry explained that "This individual unfortunately had a truckload of alcohol in him as well as other illicit substances." The decedent's ethanol level was 43, which was described as being "abnormally high," as the reference range actually should be zero, but certainly less than three milligrams per deciliter. He does not believe the decedent's death was work related. The decedent should not have been behind the wheel of a car with an alcohol level of 43, while on benzodiazepines, cocaine, and opioids. Benzodiazepine, cocaine and opiates typically could be in a person's system for up to two days, and there was no indication as to when the decedent had used them. If the drugs were still in the decedent's system, then they would have had an effect on his body. If the drugs did not have an effect on his body they would have been washed out already. Dr. Perry stated that "I think that if he was not using the substances that he was using he would not have died." Valium is in the family of benzodiazepines. This drug would cause drowsiness and that people who use this drug are warned not to drive. He would also warn against driving when using cocaine, alcohol, or opioids as they all would impair one's ability to drive. The doctor noted that the combination of these substances would have a negative synergetic effect on each other, regardless of whether he was taking them at the same time. The reason the decedent died was "because he was taking these substances at some point around the time of the accident, whether it was that day, or the day before, but he should not have been behind the wheel of a car." Regardless of whether the decedent "had alcohol in his body or not, the fact that he had cocaine in his body and these other substances in his body is a death warrant."

A hearing was held on June 2, 2016, before WCLJ Cohen-Miller. WCLJ Cohen-Miller indicated that she was the WCLJ assigned to the case as the prior WCLJs were not available. The claimant's attorney continued to raise an objection under WCL 20. The claimant testified during the hearing. The claimant testified that the decedent worked for DARR Construction. His normal work hours were 6:30 am to 3:30 pm, but sometimes he would go in early and come home later. On July 7, 2015, the decedent came home from work around 6:00 pm, changed his clothes, washed up, and sat down to have dinner, when he received a call to go back to a jobsite to make sure the trucks were ready for the next day. It was not unusual for the decedent to have to go back out after returning home from work. That night the claimant had left in a company vehicle. The decedent did not use the work truck for personal use. While eating dinner, the claimant made himself a drink with vodka and soda. He took two sips of the drink, when he got the call from work. The decedent left the house to go to the jobsite around 7:30 or 7:45 pm.

The decedent's mother also testified at the hearing held on June 2, 2016. She is the president of the decedent's employer. She assumed that on the night of July 7, 2015, the decedent was on his way to the yard to see if there was room for a delivery the next day. The decedent was in charge of the yard, and he would go to the yard a couple of nights a week to check it out and see what had to be done. That night he was going there because a delivery was being made the next day. Different places make deliveries to the yard, dropping off materials, top soil, or gravel. Although the transcript indicates that the WCLJ requested documentation that the witness referenced during her testimony, which purportedly concerned the delivery, no such documentation is in the case file. The decedent was using a company truck, and the company pays for the gas and related expenses. Although the company asks that the decedent not use the company truck for personal use, the decedent was allowed to use the truck for any purpose. Generally, he only used it for work. She was not with him at all on July 7, 2015. Since the decedent was in charge of the yard, it would not be unusual for the decedent to be called in to work from home to go to the yard. She never had any discussions with the employee who had called the decedent on July 7, 2015.

By notice of decision filed on June 7, 2016, in WCB # G1281773, WCLJ Cohen-Miller indicated that no further action is planned by the Board at this time.

In a reserved decision filed on June 23, 2016, in WCB # G1390890, WCLJ Cohen-Miller found that the motor vehicle accident report showed there was no road issues at the time of the decedent's accident on July 7, 2015, when the decedent crossed the center line and was involved in the motor vehicle accident with another vehicle. The WCLJ noted that presumptions of WCL 21 for an unwitnessed accident may be rebutted by evidence of intoxication, as 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." The WCLJ found that the decedent's medical records show that he had an abnormally high level of ethanol with 43 milligrams per deciliter and indicated levels of benzodiazepine and opioids. The WCLJ found that the decedent's injury that resulted in death was solely occasioned by intoxication from alcohol and controlled substances and disallowed the claim.

The claimant filed an application for administrative review of the June 23, 2016, decision, arguing that the case should be restored to the hearing calendar in front of WCLJ Chanis pursuant to WCL 20, and that the claim should be established as the carrier failed to prove that the decedent was intoxicated at the time of the accident or that it was the sole cause of the accident.

The carrier filed a rebuttal arguing that there was no testimony taken in the case that would result in the need of having the case be remitted to WCLJ Chanis under WCL 20. The carrier argued that the decedent's injury that resulted in death was solely occasioned by intoxication from alcohol and controlled substances, as established through blood tests, medical testimony, and the accident report, and the WCLJ properly disallowed the claim.

LEGAL ANALYSIS

WCL 20

"[WCL] 20(1) provides, in relevant part, that '[w]henever a hearing or proceeding for the determination of a claim for compensation is begun before a [WCLJ], pursuant to the provisions of this chapter, such hearing or proceeding or any adjourned hearing thereon shall continue before the same [WCLJ] until a final determination awarding or denying compensation, except in the absence, inability or disqualification to act of such referee, or for other good cause, in which event such hearing or proceeding may be continued before another [WCLJ] by order of the chair or the [B]oard.' To be sure, the statute does not require that the same WCLJ preside over any and all hearings that may be conducted in conjunction with a given claim (see Matter of Murray v St. Joseph's Hosp., 232 AD2d 692 [1996]). The statute does, however, require that once a hearing before a particular WCLJ has commenced, [that WCLJ must continue to handle the disputed issues] until a final determination is made, absent [a showing of] inability, disqualification or other good cause . . ." (Matter of Prather v Amerada Hess Corp., 95 AD3d 1633 [2012]).

Here, the case began before WCLJ Chanis, who presided over the matter on March 1, 2016. On March 31, 2016, the matter was heard by WCLJ Zucker, who indicated the previous WCLJ was not available. On June 2, 2016, the matter was heard by WCLJ Cohen-Miller, who indicated that the other previous WCLJs were not available.

Although WCLJ Chanis took testimony of the claimant on March 1, 2016, to determine that the claimant was the decedent's lawful widow and determine there were possible dependents, WCLJ Chanis did not take any testimony regarding the merits of the claims. Further, no testimony was taken before WCLJ Zucker, and testimony concerning the merits of the claim was taken by WCLJ Cohen-Miller on June 2, 2016, and WCLJ Cohen-Miller ultimately issued the underlying reserve decision filed on June 23, 2016.

Therefore, the Full Board finds that no violation of WCL 20 has occurred because, as demonstrated by WCLJs Zucker and Cohen-Miller, the prior WCLJs were not available and did not take any testimony related to the underlying issues resolved in the June 23, 2016, decision rendered by WCLJ Cohen-Miller, who reviewed the pertinent testimony and evidence. Therefore, good cause existed for the matter to be heard and decided by WCLJ Cohen-Miller.

Causally Related Death

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 rebuttable presumption that "the injury did not result solely from the intoxication of the injured employee while on duty." This presumption has been overcome in motor vehicle accidents by evidence of high blood alcohol content, erratic driving prior to accident, and the absence of evidence of any other cause for the accident (see Matter of Dawson v S. P. F. Carting Co., 259 AD2d 910 [1999]; Matter of Purcell v American Sip Corp., 248 AD2d 844 [1998]).

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 Alnye Cortland LLC, 2017 NY Wrk Comp 0741447 (January 25, 2017), the Full Board, relying in part on Majune, found that based on the evidence of claimant's extreme intoxication, considered with the manner in which the accident occurred, supported a finding that that claimant's accident was solely occasioned by his intoxication and disallowed the claim. In Alnye, the claimant was injured in a motor vehicle accident when the truck he 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. The Full Board found that the claimant had no recollection of the accident and there was no direct evidence of why the truck drifted off the road. The claimant's blood alcohol content was found to be .29%, and the carrier's consultant opined that the claimant's "level of intoxication was extreme" and would have "significantly impaired" his ability to operate a motor vehicle."

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, the decedent sustained serious injuries and ultimately died as a result of a motor vehicle accident that was caused when the pick-up truck he was driving crossed over a double solid yellow line and collided with an oncoming box truck. There is no direct evidence of why the decedent's truck crossed over into the lane of oncoming traffic. The motor vehicle accident report showed that at the time of the accident it was light outside, the road was straight and level, the roadway surface condition was dry, and the weather was clear. There is no evidence that the vehicle was defective. A July 7, 2015, toxicology report indicated that the decedent had "abnormally high" levels of ethanol (alcohol), as well as abnormal levels of benzodiazepine, cocaine, and opiates in his system. The carrier's consultant concluded that the decedent's "death occurred and was a result of intoxication due to drugs and alcohol." The consultant testified that the decedent should not have been behind the wheel of a car with an alcohol level of 43 milligrams per deciliter, while on benzodiazepines, cocaine, and opioids, as these substances would all impair one's ability to drive. There is no contradictory medical evidence in the case file.

The Full Board finds that the preponderance of the evidence supports a finding that claimant's accident was solely occasioned by his intoxication.

CONCLUSION

ACCORDINGLY, the WCLJ decisions filed April 11, 2016, and June 23, 2016, are AFFIRMED. No further action is planned by the Board at this time.