Estate of Mitchum v. Triple S Trucking

• Decision Date: 18 October 1991
• Docket Number: No. 12639,12639
• Parties: The ESTATE OF Fred Larry MITCHUM, Deceased, Claimant-Appellant, v. TRIPLE S TRUCKING and United States Fidelity and Guaranty, Respondents-Appellees.
• Court: Court of Appeals of New Mexico

Page 327

823 P.2d 327

113 N.M. 85

The ESTATE OF Fred Larry MITCHUM, Deceased, Claimant-Appellant, v. TRIPLE S TRUCKING and United States Fidelity and Guaranty Respondents-Appellees.

No. 12639.

Court of Appeals of New Mexico.

Oct. 18, 1991.

Certiorari Denied Nov. 25, 1991.

[113 N.M. 87] Victor A. Titus, Farmington, Bruce P. Moore, Albuquerque, for claimant-appellant.

Nancy Augustus, Seth V. Bingham, Miller, Stratvert, Torgerson & Schlenker, P.A., Albuquerque, for respondents-appellees.

OPINION

DONNELLY, Judge.

Worker's estate appeals from a judgment and order dismissing his claim for workers' compensation benefits based upon a finding by the workers' compensation judge (WCJ) that the accidental injury sustained by worker was caused by his intoxication. We discuss: (1) whether employer was required to establish its affirmative defense of intoxication by the testimony of a qualified health care provider; (2) whether the WCJ's findings that intoxication was the proximate cause of worker's injury are supported by substantial evidence in the record as a whole; and (3) whether the WCJ erred in admitting evidence of worker's blood-alcohol test. We also address the effect of worker's death during the pendency of this appeal. We affirm.

FACTS

Worker was employed as a water truck driver for Triple S Trucking (employer). His supervisor, Jackie Hales, testified that he telephoned worker on July 29, 1989, and requested that he report to work on the night shift. Hales stated that worker admitted he was intoxicated and was not able to come to work.

The following morning, worker reported for work at approximately 11:45 a.m. and was told to clean out the tank on a water truck. A co-worker, Edward Heald, testified that worker came into the office looking tired and glassy-eyed, and asking if Heald knew of any bars that were open. Heald stated that worker then drove his truck into a wash bay of the service area and turned on the spray pump. Approximately fifteen minutes later, Heald went outside and found worker lying on the ground on the right side of the truck, unconscious, and bleeding from a head injury.

Worker was taken immediately to the hospital by ambulance. Dr. Welch, who administered emergency treatment, noted that upon his arrival, worker had the "smell of alcohol on his breath." At the time of the accident, employer had established a policy forbidding the possession or use of illegal drugs by employees on company property and requiring employees to submit to searches for such substances as a condition of continued employment.

During the time worker remained unconscious and was being treated at the hospital, Jerry Lacey, employer's safety supervisor, informed emergency-room doctors that alcohol might have been involved in the accident and suggested that a blood-alcohol test be performed. A blood sample was withdrawn from worker and several tests, including a blood-alcohol test, were performed. As shown by worker's answers to requests for admissions, the blood-alcohol test results indicated that he had a blood-alcohol level of 0.141 or 140.7 milligrams of alcohol per deciliter of blood.

Examination of the accident scene immediately after the accident revealed that the water truck worker had been cleaning had muddy footprints on top of the tank leading from the ladder to the rear of the truck. From these footprints, extending down the right side of the tank, were streaks of mud and skid marks. A scuff mark appeared on the catwalk area which surrounds the base of the tank. Blood from worker's head was found immediately beneath the muddy skid marks on the side of the tank and on the catwalk. At the time of the accident, worker was wearing boots which were muddy and slick.

At the hearing before the WCJ, worker testified that on the morning of the accident he arrived at work shortly before noon and was instructed to clean out the tank of his truck so that clean water could be hauled to a well site. He stated that he drove his truck into the shop and took off the dome of the tank in order to get inside. He also stated that when he climbed into the tank to fix a gauge his leather-soled cowboy boots became slippery from the paraffin and oil which covered the tank's interior walls. Worker testified that thereafter he drove his truck into the wash bay in order to clean out the tank. He further stated that he believed he had climbed up the ladder to the tank and stood on its top, when he slipped and fell. Worker admitted that he had consumed a half-quart bottle of vodka the evening prior to the accident, but he denied that he was intoxicated at the time of the accident and stated that he thought that the blood-alcohol test results which were attributed to him had been mixed up with someone else's.

Following a hearing, the WCJ denied worker's claim for benefits and entered a judgment reciting that it "finds and concludes that the Claim of [worker] is barred by Sec. 52-1-11, NMSA (1978 Comp.) [because] his injury was occasioned by his intoxication * * *."

PROCEDURAL POSTURE

We address as a threshold matter the procedural posture of this case following worker's death on June 25, 1991, during the pendency of this appeal. After worker's death, his counsel filed a motion to substitute his estate to prosecute this appeal on the ground that the "cause of action for benefits and medicals incurred prior to death are items of the estate." Employer has not disputed this and, therefore, worker's estate is entitled to be substituted for worker pursuant to SCRA 1986, 12-301(B) for the purpose of prosecuting the appeal as it relates to the benefits incurred prior to death. See Holliday v. Talk of the Town, Inc., 102 N.M. 540, 697 P.2d 959 (Ct.App.1985).

PROOF OF INTOXICATION

Under its first and second issues raised on appeal, worker's estate challenges both the admissibility of the evidence of worker's alleged intoxication and the sufficiency of the evidence to support the finding adopted below determining that his injury was occasioned by his intoxication. We discuss both issues jointly.

The estate argues that in order to bar a worker's claim for compensation benefits based upon the defense of intoxication, evidence must be presented establishing that worker was intoxicated and that the intoxication was a proximate cause of the injury. The estate also contends that, because ingestion of alcohol affects individuals differently, under NMSA 1978, Section 52-1-11 (Repl.Pamp.1991), expert medical testimony is necessary to prove that worker's alleged intoxication proximately caused his accident. Section 52-1-11 provides in applicable part: "No compensation shall become due or payable from any employer under the terms of the Workers' Compensation Act ... in event such injury was occasioned by the intoxication of such worker * * *."

As observed in 1A A. Larson, The Law of Workmen's Compensation, Section 34.31 (1990), the various state legislatures, in enacting provisions recognizing intoxication as a bar to a worker's claim of disability, have generally followed one of three different approaches regarding the degree of causation required to establish such an affirmative defense. Some states have adopted statutes providing that intoxication is a defense without requiring proof that intoxication was in fact a cause of the injury. A majority of the states recognize the defense when proof of a causal relation is established between the injury and the worker's intoxication, three of which, including New Mexico, provide that intoxication is an affirmative defense to a worker's compensation claim where the employer proves that the worker's injury was " 'occasioned by' " intoxication. Id. at 6-102 to -103. A third group of states require that, in order to establish such defense, proof of the worker's intoxication must be shown to constitute the "sole," "primary," or "direct cause" of his injury. Id. at 6-103 to -104.

Scrutiny of Section 52-1-11 indicates that our legislature, in enacting legislation establishing the affirmative defense of intoxication, followed the approach taken by a majority of states requiring proof that the worker's intoxication constituted a proximate cause of his or her injury. Parr v. New Mexico State Highway Dep't, 54 N.M. 126, 215 P.2d 602 (1950). Under our statute, proof of the worker's intoxication need not be shown to be the sole cause of the injury, but only a contributing cause. See Martinez v. First Nat'l Bank of Santa Fe, 107 N.M. 268, 755 P.2d 606 (Ct.App.1987); see also SCRA 1986, 13-305 (Repl.1991); Smith v. Workers' Comp. Appeals Bd., 123 Cal.App.3d 763, 176 Cal.Rptr. 843 (1981) (absent any language in the applicable statutes indicating otherwise, legislatures must have intended the ordinary tort formula of causation to apply to the employer's burden of establishing that the worker's injury was caused by his intoxication). Thus, in order to establish the affirmative defense of intoxication, an employer must present evidence satisfying a dual requirement indicating (1) that the worker was intoxicated at the time of his or her accident, and (2) that such intoxication was a proximate cause of the resulting injury. Parr v. New Mexico State Highway Dep't; Salazar v. City of Santa Fe, 102 N.M. 172, 692 P.2d 1321 (Ct.App.1983); Schell v. Buell ECD Co., 102 N.M. 44, 690 P.2d 1038 (Ct.App.1983).

Examination of the language of Section 52-1-11 also disposes of the estate's argument that such statute must be read in conjunction with NMSA 1978, Section 52-1-28 (Repl.Pamp.1991), necessitating that the employer establish through the testimony of an approved health care provider that worker's injury was causally related to his alleged intoxication. In adopting Section 52-1-11, the legislature omitted any requirement that the defense of intoxication be established only through the testimony of an approved medical health care provider. The estate argues, however, that Section 52-1-28 specifies that where an...