Evans v. Hara's, Inc.

• Decision Date: 22 March 1993
• Docket Number: No. 19269,19269
• Parties: Gene Kent EVANS, Claimant-Appellant, v. HARA'S, INC., Employer, and Lumberman's Underwriting Alliance, Surety, and State of Idaho Industrial Special Indemnity Fund, Defendants-Respondents. Lewiston, October 1992 Term
• Court: Idaho Supreme Court

Page 934

849 P.2d 934

123 Idaho 473

Gene Kent EVANS, Claimant-Appellant, v. HARA'S, INC., Employer, and Lumberman's Underwriting Alliance, Surety, and State of Idaho Industrial Special Indemnity Fund, Defendants-Respondents.

No. 19269.

Supreme Court of Idaho,

Lewiston, October 1992 Term.

March 22, 1993.

[123 Idaho 474] Goicoechea Law Offices, Nampa, for claimant-appellant. Richard S. Owen argued.

Hawley, Troxell, Ennis & Hawley, Boise, for defendants-respondents Hara's Inc. and Lumberman's Underwriting Alliance. Karen L. Lansing argued.

Mallea & Scrivner, Boise, for defendant-respondent State of Idaho, Industrial Sp. Indem. Fund. Kenneth L. Mallea argued.

TROUT, Justice.

This is a worker's compensation case. The issues on appeal are whether the Industrial Commission (Commission) correctly applied the presumption contained in I.C. § 72-228 and whether substantial and competent evidence supports the Commission's

[123 Idaho 475] finding that the workplace did not contribute to claimant-appellant Gene K. Evans' (Evans) injury. We find the Commission correctly applied I.C. § 72-228 and there is substantial, competent evidence to support the Commission's finding that Evans was injured as a result of an alcohol withdrawal seizure and the workplace did not contribute to his injury. Accordingly, we affirm the decision of the Commission.

I. SCOPE OF REVIEW

The Court's review of decisions of the Industrial Commission is limited by the Idaho Constitution and prior case law to a review of only questions of law. Idaho Constitution, art. 5, § 9; Vendx Marketing Co., Inc. v. Dept. of Employment, 122 Idaho 890, 841 P.2d 420 (1992). Our review of the correctness of the Commission's application of I.C. § 72-228 is a question of law. Hatley v. Lewiston Grain Growers, Inc., 97 Idaho 719, 721, 552 P.2d 482, 484 (1976).

II. BACKGROUND AND PRIOR PROCEEDINGS

On November 30, 1988, Evans sustained a serious head injury while working in the shipping department of Hara's, Inc. (Hara's). A referee appointed by the Commission made findings of fact which the Commission adopted after a de novo review of the record ¹. On appeal Evans concedes there is substantial and competent evidence to support the referee's findings of fact as well as the Commission's ultimate finding that his fall was occasioned by an alcohol withdrawal seizure. Evans contends, however, that the Commission improperly placed the burdens of production and persuasion, contrary to the provisions of I.C. § 72-228, and that there was not substantial affirmative evidence presented proving the workplace in no way contributed to Evans' injury.

Because the findings are not in dispute, we will paraphrase them in pertinent part:

1. Evans was employed by Hara's, a manufacturer of mobile home windows, in their shipping department. His job responsibilities included banding groups of windows together for shipping and loading trucks.

2. On the afternoon of November 30, 1988, Evans sustained a serious head injury while working at Hara's. Evans was found on his knees in an aisleway several feet from his workstation and appeared somewhat dazed or incoherent. A bruise or abrasion approximately one inch wide and three to four inches long was observed on Evans' forehead. Evans was assisted to his feet and helped to an office. He was able to give his name and address but was unable to relate what happened to him.

3. Evans was taken to a medical clinic and examined by a physician. Paramedics thereafter transported him to Mercy Medical Center in Nampa. A bruise or swelling was discovered on the back of Evans' head. He became comatose and was transported to St. Alphonsus Hospital in Boise where he came under the care of Dr. Patrick Cindrich, a neurosurgeon.

4. The rear of Evans' skull was fractured. Although there was a large bruise at the rear of his head, there was no laceration thus indicating the injury was caused by blunt trauma. The blow to the back of the head was sufficient to rupture blood vessels in the brain and cause hemorrhaging in various areas including the front of the brain. Evans underwent surgery to relieve pressure on the brain and after an extended convalescence in St. Alphonsus Hospital, was transferred to a rehabilitation hospital and 5. Evans is unable to relate what occurred. He worked in a level area with a concrete floor. He was not working at any height and there was no overhead machinery nor any object which could drop on him. There was no dangerous machinery or dangerous activity in the area. Evans was found on the concrete floor ten to twelve feet from any object. Following the accident, nothing unusual was noted about the work area and there was no indication as to what caused the injury. There were no apparent witnesses to the accident and an investigation by the Nampa Police Department revealed no evidence of criminal misconduct.

[123 Idaho 476] then to a care facility. Evans has residual brain damage and is totally disabled. He is unable to speak and often appears not to understand what is going on around him.

6. Evans is an alcoholic. He consumed up to twelve beers on days that he worked and on weekends, his consumption would increase to almost 24 beers a day. Evans attempted to stop drinking before his injury but was unsuccessful. He has a history of alcohol withdrawal seizures when he stops drinking. His medical records indicate he may have had as many as ten seizures prior to this injury. Evans' sister was present during three of these seizures. One occurred while Evans was standing or walking in a house. Although Evans' sister did not see him fall, he apparently fell, striking his head on a coffee table and landing on his back. On another occasion, Evans' sister heard a noise in the kitchen and entered whereupon she found Evans on his back experiencing a seizure.

7. Medical evidence indicates that some individuals suffer from alcohol withdrawal seizures when heavy alcohol consumption is stopped or greatly reduced. The period of greatest risk is from one to three days following the consumption of alcohol. While the form of seizure varies among individuals, they are typically the grand mal type which are generally convulsive. They begin with a rapid loss of consciousness and are generally followed immediately by a stiffening of the muscles in the body which may be extremely forceful. This phase is followed by uncontrolled jerking movements of the extremities and when the individual regains consciousness, there is a period of confusion and unsteadiness without any memory of the seizure.

8. On the evening of Saturday, November 26, 1988, four days prior to his injury, Evans attended a party where he consumed more than his usual quota of alcohol and became uncharacteristically unruly. He did not feel well the next day but still consumed a small amount of beer. On Monday, November 28, Evans did not go to work because of flu-like symptoms and an upset stomach. On Tuesday, Evans reported to work in the morning but left after the mid-morning break because he did not feel well. He consumed a small quantity of beer that day. The following day, the day of the accident, Evans reported for work in the morning. He mentioned to his supervisor that he did not feel well and consumed Mylanta that morning. He engaged in his regular work at his usual pace until he was discovered on his knees in the aisleway that afternoon.

9. Four physicians testified at the hearing on the issue of the likelihood that Evans sustained his head injury during an alcohol withdrawal seizure: (1) Dr. Richard Gerber, medical director at the Care Unit in Nampa who treats patients with alcohol addiction, testified that individuals who suffer alcohol withdrawal seizures generally slump to the floor if they are in a standing position when the seizure occurs. Gerber testified there is a low probability Evans was injured in connection with a fall during a seizure and believes seizures Based on the foregoing, the Commission determined that Evans' injury occurred during the course of his employment but substantial evidence had been presented which rebutted the I.C. § 72-228 presumption in favor of Evans. ² The Commission ruled that substantial evidence had been introduced such that a "reasonable mind could well conclude" that Evans' injury was caused by circumstances personal to him: an alcohol withdrawal seizure during which he fell from a level surface and was injured when the back of his head struck the cement floor. The Commission held that substantial evidence indicated Evans' injury did not result from any risk occasioned by the circumstances or instrumentalities of Evans' employment.

[123 Idaho 477] are more likely to occur from one to three days after drinking has stopped. Gerber admitted there is considerable variation in this time frame and it is affected if alcohol consumption is reduced and not eliminated. He testified that Evans could have suffered an alcohol withdrawal seizure on November 30 but it was equally probable he did not; (2) Dr. Roy Clark, a psychiatrist from Seattle with an emphasis in treating chemical dependency, testified that Evans injury was beyond the time when most alcohol withdrawal seizures occur. He testified that most seizures occur within 48 hours of the last consumption of alcohol. He conceded that the time in which Evans could have had a seizure could have been extended if Evans consumed small quantities of alcohol from Sunday through Tuesday; (3) Dr. Richard Wilson, a Boise neurologist who treats seizure disorder, testified that such seizures generally occur within 7 to 48 hours following the complete cessation of drinking, or the beginning of a period of substantial reduction of alcohol intake. Evans' period of risk could have been extended by individual factors or patterns and Evans previously suffered a seizure three days after a substantial reduction in alcohol consumption. Wilson testified that, in his opinion, Evans suffered a convulsive...