Mission Ins. Co. v. Ware, 54239

• Decision Date: 29 September 1977
• Docket Number: No. 54239,No. 3,54239,3
• Citation: 143 Ga.App. 550,239 S.E.2d 162
• Parties: MISSION INSURANCE COMPANY et al. v. Lucinda WARE
• Court: Georgia Court of Appeals

Page 162

239 S.E.2d 162

143 Ga.App. 550

MISSION INSURANCE COMPANY et al. v. Lucinda WARE.

No. 54239.

Court of Appeals of Georgia, Division No. 3.

Sept. 29, 1977.

Rehearing Denied Oct. 18, 1977.

Savell, Williams, Cox & Angel, Cullen Hammond, Atlanta, for appellants.

Knox & Evans, Robert E. Knox, Thomson, for appellee.

BIRDSONG, Judge.

Appellant, insurance carrier for the employer of the deceased employee in this workmen's compensation claim, appeals the affirmance by the superior court of an award in favor of the employee by the State Board of Workmen's Compensation (board), which, in a split decision, reversed the denial of the employee's claim by the administrative law judge. The issues presented are: (1) whether the board erred in excluding from the evidence the results of a blood test showing a .20 blood-alcohol level, and (2) whether the evidence supports the board's finding that deceased's death was not caused by wilful misconduct.

The evidence is undisputed that the deceased, Ware, was in the employ of Wisham and Hall Lumber Company, and at the time of his death was engaged in such employment while driving his employer's truck loaded with lumber. On the date of the accident, at approximately 11:45 a.m., the deceased arrived at the plant where he was to pick up a load of lumber. He was observed at that time by several employees of Georgia-Pacific, all of whom testified that they neither smelled alcohol on deceased nor otherwise observed anything unusual about him. Ware loaded and secured his cargo uneventfully and departed at approximately 1:00 p.m.

Later that afternoon, a state highway patrolman arrived at the scene of the accident, where he found the deceased's truck, still on its wheels, to the left of the road with lumber strewn along the shoulder. Deceased, at the time still living, was being placed inside an ambulance, which took him to the county hospital where he was pronounced dead on arrival. The ambulance driver also testified that he was unable to detect the odor of alcohol on deceased.

The patrolman's investigation revealed no evidence whatsoever as to the cause of the accident, nor were any witnesses produced. No skid marks were observed; the patrolman simply issued a "blanket charge" of "driving too fast for conditions." The patrolman then telephoned the patrol station and asked that they call the county hospital to request that a blood sample be taken from deceased. This procedure was performed by a lab technician, and subsequent titration analysis revealed a blood-alcohol content of .20 per cent. The board ruled that, inasmuch as the patrolman failed to secure the blood sample in question through a medical examiner, as provided in Code Ann. § 21-227 (Ga.L.1974, p. 561), he had failed to comply with the requirements contained therein, and the blood-alcohol test results were, therefore, inadmissible. Held :

1. Appellant enumerates as error the board's refusal to consider the results of the blood-alcohol test. Without reaching the merits of this contention, we note that the board specifically stated that ". . . even if the blood test evidence (were) admissible the outcome of the case would be the same because a majority of the board is convinced that the weight of evidence rebuts the presumption of intoxication and shows that deceased was not intoxicated at the time of his accident." The rule is well-settled that error, to require reversal, must be harmful. Dismuke v. State, 142 Ga.App. 381, 385, 236 S.E.2d 12 (1977).

More importantly, one of the cardinal principles followed by this court in workmen's compensation cases is that neither this court nor a superior court has the authority to substitute itself as a fact-finding body in lieu of the board. Employer's Ins. Co. v. Amerson, 109 Ga.App. 275, 136 S.E.2d 12. This court lacks the authority to set aside an award based on facts found by the board. Speight v. Container Corp., 138 Ga.App. 45, 46, 225 S.E.2d 496; Turner v. Baggett Transp. Co., 128 Ga.App. 801(3), 198 S.E.2d 412; Indemnity Ins. Co. v. O'Neal, 104 Ga.App. 305 (3), 121 S.E.2d 689; Dept. of Revenue v. Graham, 102 Ga.App. 756(2) 117 S.E.2d 902; Hartford Acc. etc., Co. v. Davis, 73 Ga.App. 10(1), 35 S.E.2d 521. 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. Fulmer v....