Evans v. Frakes Trucking

• Decision Date: 04 October 2002
• Docket Number: No. 88,150,88,150
• Parties: RICHARD L. EVANS, Deceased, Claimant/Appellee, v. FRAKES TRUCKING, Respondent/Appellant, and KANSAS RISK SERVICES GROUP, Insurance Carrier/Appellant.
• Court: Kansas Court of Appeals

31 Kan.App.2d 211

64 P.3d 440

RICHARD L. EVANS, Deceased, Claimant/Appellee, v. FRAKES TRUCKING, Respondent/Appellant, and KANSAS RISK SERVICES GROUP, Insurance Carrier/Appellant.

No. 88,150

Court of Appeals of Kansas

Opinion filed October 4, 2002.

Douglas M. Greenwald, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellants.

John J. Bryan, of Bryan, Lykins, Hejtmanek & Fincher, P.A., of Topeka, for appellee.

Before BEIER, P.J., ELLIOTT and KNUDSON, JJ.

BEIER, J.:

Respondent Frakes Trucking (Frakes) and its insurance carrier, Kansas Risk Services Group, appeal an award to the children of deceased claimant Richard Evans. They argue the Workers Compensation Board (Board) incorrectly defined the probable cause necessary for admission of a blood alcohol test result and, under that definition, arrived at the wrong conclusion on the merits of their alcohol impairment defense.

Evans was killed in a dump truck rollover accident while working for Frakes. On the morning of the accident, Evans arrived late for work. When he arrived, he apologized for his tardiness. Frakes' secretary didn't notice anything out of the ordinary concerning Evans' behavior, although he was less upbeat than usual. He walked normally as he left the office to get into his truck.

Evans drove his regularly assigned truck on the day of the accident. The truck's brakes and engine had recently been replaced, and Evans had reported no mechanical problems in the weeks before the accident. Evans proceeded to a quarry, picked up what was to be his first load for the day, and was driving on a two-lane highway when the accident occurred.

The Kansas Highway Patrol sergeant who investigated the scene determined the truck had dropped off the paved surface onto the unimproved shoulder of the highway. When Evans tried to bring the truck back onto the pavement, he apparently overcorrected and steered into the oncoming lane. He then turned right to bring the truck back into the correct lane, and the force of the turn caused the truck to roll over onto its left side and slide off the road. Evans was declared dead at the scene; he had been ejected part of the way out of the truck cab. There were no witnesses to the accident.

The Highway Patrol lieutenant first on the scene noticed no smell of alcohol in the truck's cab or on Evans' body. No alcoholic beverage cans or bottles were found. There were no reports that Evans was driving inappropriately before the accident. The sergeant testified that nothing about the accident struck him as unusual; he speculated Evans may have been driving too fast for roadway conditions and misjudged a curve.

Frakes' secretary testified that a woman who identified herself as Evans' girlfriend called during the hours after the accident and said she and Evans had consumed alcohol the night before. Nothing in the record indicates any effort by Frakes to encourage the Highway Patrol to investigate this allegation regarding alcohol use.

An autopsy was performed. The examining physician detected no odor of alcohol while examining the body, but Evans' blood was tested as a matter of routine. The test results showed an alcohol concentration of .05 percent, and further testing confirmed that result.

Evans' three children filed for workers compensation benefits. The administrative law judge (ALJ) admitted evidence of the test results and refused to award benefits because Evans had been impaired by alcohol use and the impairment contributed to the accident under K.S.A. 1997 Supp. 44-501(d)(2). Evans' children sought review by the Board.

The Board rejected the ALJ's decision and found there was no probable cause to believe Evans used, had possession of, or was impaired by alcohol while working; therefore the tests results were inadmissible. This appeal follows.

K.S.A. 1997 Supp. 44-501(d)(2) sets the parameters of the alcohol impairment defense to a workers compensation claim:

"The employer shall not be liable under the workers compensation act where the injury, disability or death was contributed to by the employee's use or consumption of alcohol.... It shall be conclusively presumed that the employee was impaired due to alcohol if it is shown that at the time of the injury that the employee had an alcohol concentration of .04 or more.... The results of a chemical test shall not be admissible to prove impairment unless the following conditions were met:

"(A) There was probable cause to believe that the employee used, had possession of, or was impaired by the drug or alcohol while working; ...." (Emphasis added.)

The ALJ determined the probable cause element of K.S.A. 1997 Supp. 44-501(d)(2)(A) was met and considered the test result and the secretary's hearsay testimony regarding the phone call from the woman who identified herself as Evans' girlfriend. When the presumption of impairment attached to a blood alcohol level of at least.04 percent was applied, the ALJ awarded no benefits.

The Board noted that the statute does not define probable cause and interpreted the phrase to mean "having sufficient information to lead a reasonable person to conclude that there is a substantial likelihood that drugs or alcohol were either used by or impaired the injured worker." The Board determined there was no indication...