Peterson v. Industrial Commission

• Decision Date: 22 November 1971
• Docket Number: CA-IC,No. 1,1
• Citation: 16 Ariz.App. 41,490 P.2d 870
• Parties: Deborah PETERSON, Widow, Petitioner, In the Matter of Richard L. Peterson, Deceased, v. The INDUSTRIAL COMMISSION of Arizona, Respondent, Paul Bimmerman Company, Respondent Employer, State Compensation Fund, Repondent Carrier. 620.
• Court: Arizona Court of Appeals

Page 870

490 P.2d 870

16 Ariz.App. 41

Deborah PETERSON, Widow, Petitioner In the Matter of Richard L. Peterson, Deceased, v. The INDUSTRIAL COMMISSION of Arizona, Respondent Paul Bimmerman Company, Respondent Employer State Compensation Fund, Repondent Carrier.

No. 1 CA-IC 620.

Court of Appeals of Arizona, Division 1.

Nov. 22, 1971.

Rehearing Denied Dec. 28, 1971.

Review Denied Feb. 8, 1972.

Bernard I. Rabinovitz, Tucson, for petitioner.

William C. Wahl, Jr., Chief Counsel, The Industrial Comm. of Ariz., Phoenix, for respondent.

Robert K. Park, Chief Counsel, State Compensation Fund by Harlan J. Crossman, Phoenix, for respondents employer and carrier.

HATHAWAY, Judge.

We are asked on this Petition for Writ of Certiorari to set aside an award of The Industrial Commission entered 20 January 1971, denying death benefits to the widow and dependents of Richard L. Peterson. We must decide whether decedent's death was caused by an 'accident arising out of and in the course of his employment,' A.R.S. § 23--1021, and whether evidence of decedent's intoxication should bar recovery.

Decedent was employed by the respondent employer, a feed miller and supplier, in Willcox, Arizona. On 25 November 1969 he was dispatched to Patagonia, Arizona, to sell feed to farmers and ranchers in that area. He telephoned his office that evening requesting a price quotation and indicated that he would stay overnight in Patagonia to contact prospective buyers he had been unable to see that day. His employer testified that such overnight stays were not unusual during certain seasons of the year. On such occasions decedent was reimbursed for his expenses incurred in lodging, travel and meals in addition to a monthly salary. He did not receive commissions on his sales.

The evidence presented indicated that the decedent spent from approximately 6:00 p.m. to 8:00 p.m. and 10:30 p.m. to 1:00 a.m. that night in a combination bar and cafe in Patagonia eating, drinking, conversing and playing pool. When the premises closed at 1:00 a.m., the morning of November 26th, he left in the company of fellow patrons to take some gasoline to a stalled vehicle. The proprietress of the rooming house in which he stayed testified that she did not see his pick-up truck in the parking lot when she took medication at 3:00 a.m. She did see the truck in the lot at 6:30 a.m. that morning when she left the house.

At approximately noon on November 26th the body of the decedent was found by the rooming house proprietress with his head caught between two metal slats of the bed headboard and his feet dangling over the side of the bed. The autopsy report concluded the death was accidental setting forth: 'The cause of death was suffocation, the result of pressure on the right neck.' Laboratory analysis disclosed a blood alcohol content of .190 per cent. The Commission upheld the finding of the hearing officer denying benefits on the basis that the 'applicant did not suffer death as a result of an accident arising out of and in the course of his employment * * *.'

Respondents first contend that there was a finding, 'if not in fact, inferentially, that the deceased's state of intoxication was sufficient to take him out of the course of employment.' The pertinent findings state:

'5. That decedent, the evening of November 25, 1969, spent time at a bar at Patagonia where he engaged in drinking highballs and playing pool, that decedent was not considered intoxicated by those witnesses who last saw the decedent alive, that decedent left the bar at 1:00 a.m. on November 26, 1969 to take a man to this man's car with gasoline.

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9. That the decedent had a blood alcohol reading at the time of death of .190 which was not indicative of his being in a deep alcoholic stupor.'

We cannot agree that the findings or the evidence of intoxication establish a sufficient basis to exclude benefits. We cannot read into the findings nor find in the testimony any evidence that the decedent's intoxication in any way caused or even contributed to his death. The barmaid testified that in her opinion when he left, 'I would say definitely he was not drunk.' Sergeant Scott R. Chesnut, of the Department of Public Safety, Criminal Investigations Division, a recognized expert by the hearing officer, testified that .19 per cent, 'would cause a lessening of pain threshold, would release inhibitions. The individual would be conscious and his memory might be lessened to a certain extent. The individual would be in physical control of himself. He would be conscious.' Doctor Zenas Noon, who performed the autopsy, admitted that .15 per cent blood alcohol is 'medical intoxication, * * * but certainly .15 would not be enough intoxication to cause death.' The body was examined at the scene by Dr. Delmar Mock who said .19 per cent would not put a person into a deep alcoholic stupor, which would require a .25 per cent or more.

Our consideration of this question is guided by the Arizona Supreme Court which has held that the compensation act of this state does not make intoxication or careless or negligent acts a bar to compensation. A person must be drunk to such an extent that he can no longer follow his employment. Ortega v. Ed Horrell & Son, 89 Ariz. 370, 362 P.2d 744 (1961); King v. Alabam's Freight Co., 38 Ariz. 205, 298 P. 634 (1931). The intoxication must have reached an extent to be tantamount to abandonment of employment. Simpkins v. State Banking Department, 45 Ariz. 186, 42 P.2d 47 (1935).

Further, the testimony was unanimous that death was accidental. Sergeant Chesnut whose self-described specialty is 'investigation of violent death' reduplicated the accident. In his opinion the cause of death was suffocation by strangulation, the bed headboard being the instrument causing death. He gave the following description of what occurred:

'Otherwise, when the deceased had rolled over on the bed and restricted his neck, the oxygen flow was cut off to his brain. The deceased may or may not have been alive at the time his feet hit the floor. However, if he had been alive, the condition would have been such that he would not have been able to do anything to help himself * * *. However, once the decedent rolled over in bed and restricted his neck, actually placed the weight of his body, two hundred pounds, on that one small area he couldn't help himself. He actually and very possibly was conscious for a few minutes and was aware of...