Florida Tile Industries v. Dozier
| Decision Date | 09 May 1990 |
| Docket Number | No. 88-2696,88-2696 |
| Citation | 561 So.2d 654 |
| Parties | 15 Fla. L. Weekly D1326 FLORIDA TILE INDUSTRIES and Liberty Mutual Insurance Company, Appellants, v. James E. DOZIER, Appellee, and State of Florida, Department of Labor and Employment Security, Division of Workers' Compensation, Statutory Respondent. |
| Court | Florida District Court of Appeals |
Charles E. Bentley and Michael P. Sampson of Holland and Knight, Lakeland, for appellants.
H. Guy Smith, Lakeland, Calvin A. Pope, Tampa, and Bill McCabe, Longwood, for appellee James E. Dozier.
Florida Tile Industries and Liberty Mutual Insurance Company, the employer and carrier, appeal a workers' compensation order that awarded James Dozier, claimant, permanent total disability benefits, temporary total disability benefits, medical benefits, and attendant care services. The employer and carrier assert on appeal that the judge of compensation claims erred in finding that evidence of claimant's blood alcohol content did not give rise to the statutory presumption of causation by intoxication, and erred in awarding claimant 24-hour attendant care benefits. We affirm on both points.
Claimant sustained injuries resulting in extensive brain damage while working as a mixer/bulk system operator for the employer, a ceramic wall and floor tile manufacturer. On October 24, 1985, at 2:00 a.m., a coworker found claimant lying unconscious on his back on the concrete floor six feet below his work station. No one witnessed the accident nor saw claimant during the hour and twenty minutes before he was found unconscious. At 3:00 a.m., in the hospital emergency room, blood was drawn from claimant for a series of blood tests. Blood alcohol test results reflected a serum alcohol level of 0.16. Claimant remained hospitalized for approximately three months, and his residual injuries include complete retrograde amnesia.
Claimant subsequently filed a claim for medical benefits, temporary total and permanent total disability benefits, and attendant care benefits. The employer and carrier defended the claim on the grounds that section 440.09(3), Florida Statutes (1985), "the intoxication statute," precluded claimant from receiving workers' compensation benefits for these injuries.
After a six-day hearing, the judge entered a fifty-page order wherein he found that the employer and carrier failed to establish the fact that at the time of claimant's injury claimant's blood alcohol level was 10% [0.10] or greater, and refused to apply the statutory presumption of causation by intoxication. The judge found the accident was compensable, and awarded claimant temporary total disability benefits, permanent total disability benefits, medical benefits, and 24-hour-a-day attendant care services.
The judge found section 440.09(3), Florida Statutes (1985), inapplicable to this case because, among other reasons, the statute requires a test for alcohol in the employee's whole blood, not in his blood serum. Section 440.09(3) provides:
No compensation shall be payable if the injury was occasioned primarily by the intoxication of the employee; by the influence of any narcotic drugs, barbiturates, or other stimulants not prescribed by a physician, which affected the employee to such an extent that the employee's normal faculties were impaired; or by the willful intention of the employee to injure or kill himself, herself, or another. If there was at the time of the injury 0.10 percent or more by weight of alcohol in the employee's blood, it shall be presumed, in the absence of substantial evidence to the contrary, that the injury was occasioned primarily by the intoxication of the employee. Percent by weight of alcohol in the blood shall be based upon grams of alcohol per 100 milliliters of blood.
(emphasis added). This statute requires a test of the employee's whole blood for alcohol content and makes no provision for testing of the employee's blood serum. The statute plainly requires a showing that there was "0.10 percent or more by weight of alcohol in the employee's blood," not in the employee's blood serum. The statute further states that "[p]ercent by weight of alcohol in the blood shall be based upon grams of alcohol per 100 milliliters of blood "; it does not make any provision for a determination based upon blood...
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People v. Green
...at 914 n. 2, 194 Ill.Dec. 715, 628 N.E.2d 212; see also 625 ILCS 5/11-501.2(a)(5)(West 1996); accord Florida Tile Industries v. Dozier, 561 So.2d 654, 655 (Fla.App.1990), overruled on other grounds, Domino's Pizza v. Gibson, 668 So.2d 593 (Fla.1996). A. The first in defendant's "series of e......
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J & J Baker Enterprises v. Gaylord
...intoxication presumption, the JCC found the presumption inapplicable. In apparent reliance upon our decision in Florida Tile Industries v. Dozier, 561 So.2d 654 (Fla. 1st DCA), rev. denied, 576 So.2d 286 (Fla.1990), the JCC concluded that only the actual testing of whole blood could trigger......
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Domino's Pizza v. Gibson
...on the ground that the test was performed on blood serum rather than whole blood. Gibson cited the decision in Florida Tile Industries v. Dozier, 561 So.2d 654 (Fla. 1st DCA 1990), as authority that blood serum test results are inadmissible under section After hearing on the motion, the jud......
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Domino's Pizza v. Gibson, 93-2526
...from a percentage of blood serum to a percentage of whole blood. We are constrained by this court's opinion in Florida Tile Industries v. Dozier, 561 So.2d 654 (Fla. 1st DCA), rev. denied, 576 So.2d 286 (Fla.1990), to affirm. In Florida Tile, this court construed section 440.09(3), Florida ......