City of Buford v. Thomas

• Court: Georgia Court of Appeals
• Writing for the Court: BEASLEY; DEEN, P.J., and BENHAM
• Citation: City of Buford v. Thomas, 347 S.E.2d 713, 179 Ga.App. 769 (Ga. App. 1986)
• Decision Date: 15 July 1986
• Docket Number: No. 72205,72205
• Parties: CITY OF BUFORD et al. v. THOMAS et al.

Page 713

347 S.E.2d 713

179 Ga.App. 769

CITY OF BUFORD et al. v. THOMAS et al.

No. 72205.

Court of Appeals of Georgia.

July 15, 1986.

Stephen A. Friedman, Charles B. Rice, Atlanta, for appellants.

G. Gibson Dean II, Buford, for appellees.

BEASLEY, Judge.

On September 30, 1983 shortly after 5:00 p.m., claimant's husband (employee) was found injured, having been run over by the tractor-pulled bushhog he was operating during the course of his employment. The seat belt of the tractor was unbuckled. Upon his hospitalization, a blood sample was taken from employee which reflected a blood alcohol level of .139. No one witnessed the accident, and employee could not remember what happened.

On July 29, 1984 employee, while hospitalized for a condition resulting from the bushhog accident which left his lower extremities unstable, apparently fell and was found at the foot of the bed. Employee died from injuries sustained in this incident, which again, no one witnessed. The present workers' compensation action followed.

The ALJ awarded claimant compensation and medical benefits, finding: 1) employee was "not intoxicated to the extent that his judgment was impaired or his words or conduct were visibly impaired and noticeably affected"; and 2) intoxication was not the proximate cause of the September 30 injury because employee "might have unbuckled his seat belt to stand up and look toward the bushhog, trying to clear it of a root, stump, or rock, and that during this activity, the tractor lurched forward, throwing him to the ground," the ALJ explaining that there was no evidence to overcome this "reasonable hypothesis." After a subsequent hearing, the ALJ awarded death benefits to claimant concluding, "a natural inference arising from all the evidence ... points to [employee's] weakness from renal failure and lower extremity weakness, both conditions resulting as a consequence of or secondary to the bushhog injury ..., as proximate contributing causes leading directly to [employee's] fall and subsequent death regardless of the reason for which he tried to get out of bed."

The State Board of Workers' Compensation adopted the findings and conclusions of the ALJ, and the superior court affirmed. We granted employer's application for discretionary appeal to review both the award of compensation and medical benefits and the award of death benefits.

1. Employer enumerates that OCGA § 34-9-17 bars all benefits to claimant, contending employee violated OCGA § 40-6-391(a)(4), driving a moving vehicle while there is .12% or more by weight of alcohol in his blood, and also failed to use a safety appliance, the tractor's seat belt.

OCGA § 34-9-17 prohibits compensation for an injury or death "due to the employee's wilful misconduct, including [injury] due to intoxication or wilful failure or refusal to use a safety appliance or perform a duty required by statute ..."

a) Intoxication. Employer points to the blood sample taken from employee after the bushhog incident which reflected a blood alcohol level of .139 and to testimony that at the time of the accident his blood alcohol level could actually have been as high as .22 as evidence of wilful misconduct. However, to deny compensation it is not sufficient for employer to show wilful misconduct; the employer also has the burden of proving the employee's misconduct proximately caused his injury. OCGA § 34-9-17; Communications, Inc. v. Cannon, 174 Ga.App. 820, 331 S.E.2d 112 (1985).

Whether the employee has a .12% or higher blood alcohol level and whether this was the proximate cause of the injury were questions properly left to the State Board of Workers' Compensation: "A cardinal principle followed by this court in workmen's compensation cases is that neither this court nor a superior court has any authority to substitute itself as a fact finding body in lieu of the board of workmen's compensation. [Cit.] Thus a finding of fact by a director or administrative law judge of the State Board of Workmen's Compensation, when supported by any evidence, is conclusive and binding upon the courts ... Moreover, upon appeal from an award of the State Board of Workmen's Compensation granting compensation, the evidence must be construed in a light most favorable to the party prevailing before the board. [Cit.]" Lockhart v. Liberty Mut. Ins. Co., 141 Ga.App. 476, 478-479(1), 233 S.E.2d 810 (1977). See also Carroll v. Dan River Mills, 169 Ga.App. 558, 562(1), 313 S.E.2d 741 (1984).

There is evidence in the record that employee was not affected by his consumption of alcohol. His foreman stated that he saw employee about 4:30 p.m. on the day of the accident, that he came within three to five feet of him, and that "he walked just like anybody else ... He talked with--I mean there was nothing wrong with him that I could see." When questioned about employee's sobriety at the time, the supervisor responded, "Well, he was just as well off as anybody ... He was all right." Employee's ex-wife stated that she saw employee between 3:00 and 5:00 p.m. when he came into the store where she was working and purchased two 12-ounce beers. She observed him to be "walking all right" and noted that his voice was not slurred, that he was walking quickly and appeared to be in normal control of himself. A co-worker who last saw employee operating the bushhog at 4:45 p.m. stated that he did not detect any signs of drinking on the part of employee. Thus, contrary to employer's assertion, there was evidence to support the Board's finding that employee was not intoxicated to the extent that his judgment was impaired or his words or conduct were visibly impaired and noticeably affected.

Moreover, the employer failed to prove that employee's drinking proximately caused the accident. No one witnessed employee's fall, and employee could not recall what happened. "This left before the board an unexplained accident occurring during the course of employment. The law is well established that when an accident occurs in the course of employment otherwise unexplained, a presumption arises that it is compensable." Lockhart, supra 141 Ga.App. at 480, 233 S.E.2d 810.

b) Safety appliance. Employer contends that the following evidence required a finding that employee wilfully failed to use a safety appliance: The tractor had a seat belt; it was found unbuckled at the time employee was discovered after the accident; he had used the seat belt in the past; and, had he been wearing the seat belt at the time of the incident, he would not have fallen to the ground.

Even if we were to assume proximate causation, that employee would have escaped injury had he worn the seat belt, the above evidence does not require a finding of wilful failure to use the safety appliance: "[W]here conduct of the employee may be conscious and intentional violation of a known rule so as to constitute wilful misconduct, or may be merely inadvertent or an involuntary violation so as to constitute negligence only, the decision of the board on the point must be honored by this court." North Ga., etc., School v. Boatwright, 144 Ga.App. 66, 68, 240 S.E.2d 563 (1977). We will not interfere with the board's finding that the evidence "is insufficient to show that claimant willfully refused to use a safety device, i.e., the safety belt on the tractor."

2. Employer enumerates for the first time on appeal that claimant failed to meet the burden of proving the bushhog accident "arose out of" the course of employment. It is well settled that this court will not consider issues raised for the first time on appeal. Ga. Retail Assn. v. Ga. Public Svc. Comm., 165 Ga.App. 208, 300 S.E.2d 544 (1983). Additionally, a review of the record reflects that employer conceded this element below and merely argued various exceptions to recovery, such as wilful misconduct.

3. Employer next challenges the award of death benefits, claiming that death was not caused by the bushhog accident. The lack of causation is based on two sources. First, employer asserts that employee failed to follow his surgeon's instructions not to get out of bed without assistance. Second,...