Poole v. Earp Meat Co.

• Decision Date: 19 February 1988
• Docket Number: No. 60409,60409
• Citation: 242 Kan. 638,750 P.2d 1000
• Parties: Susan POOLE, as surviving spouse and as mother and guardian of the three minor children of Gary Poole, deceased, Appellant, v. EARP MEAT COMPANY and Rockwood Insurance Company, Appellees.
• Court: Kansas Supreme Court

Page 1000

750 P.2d 1000

242 Kan. 638

Susan POOLE, as surviving spouse and as mother and guardian of the three minor children of Gary Poole deceased, Appellant, v. EARP MEAT COMPANY and Rockwood Insurance Company, Appellees.

No. 60409.

Supreme Court of Kansas.

Feb. 19, 1988.

Syllabus by the Court

1. After a claimant meets the burden of proof establishing the right to workers' compensation, the burden of proving a defense to the claim shifts to the employer.

2. In a workers' compensation case, as with other civil cases, the appellate court is bound by those findings of the district court which are supported by substantial competent evidence.

3. The workers' compensation statutes are to be liberally construed to effect legislative intent and award compensation to a worker where it is reasonably possible to do so. If the district court fails in its application of this rule of construction, this court has the duty to correct that failure.

4. To defeat a workers' compensation claim based on claimant's intoxication an employer must prove not only that the claimant was intoxicated, but that such intoxication was the substantial cause of the injury.

5. The presumption of intoxication provided for under the Kansas criminal statute is inapplicable in workers' compensation cases. Evidence of the blood alcohol concentration of a workers' compensation claimant is relevant to the issue of the cause of the accident in which the claimant is injured, but does not give rise to a presumption of intoxication.

6. An appellate court on review looks only for substantial competent evidence supporting the district court's findings of fact.

Paul V. Dugan, Wichita, argued the cause and was on the brief for appellant.

Michael T. Harris, Wichita, argued the cause and was on the brief for appellees.

HERD, Justice:

This is a workers' compensation case. Susan Poole, surviving wife of Gary Poole, on behalf of herself and their three minor children, appeals the district court's finding that benefits must be denied pursuant to K.S.A.1987 Supp. 44-501(d) because death was substantially caused by Poole's intoxication.

The relevant facts are as follows: Gary Poole was a six foot-one-inch, 180-pound, 29 year-old truck driver who was killed when his semi-truck overturned early one morning as he was returning home. Poole worked for the Earp Meat Company loading and delivering meat. Appellant's claim for death benefits through workers' compensation was denied because of evidence the accident was caused by Poole's intoxication. Poole was depicted as an athletic man who was proud of his body and therefore drank very little. He had never been seen to drink more than a beer or two.

Poole had suffered a back injury on the job about six months prior to his fatal crash and complained for weeks to his wife and co-workers that the pain of his injury caused him to be physically exhausted. A few days before his death, he began passing blood in his urine. On the Wednesday before the fatal accident, a co-worker called in sick, forcing Poole to make an extra run and thus work several hours longer than usual. Poole's Thursday shift caused him to get home around 2:00 a.m. Friday morning. He lay down next to his wife and told her, "I feel terrible--I'm so tired--I just don't feel well." That Friday morning he got up earlier than normal, around 7:30 a.m., to install a new washer and dryer in his home. He left for work around 12:30 that afternoon and appellant expected to see him at approximately 2:00 a.m. Saturday morning.

Poole arrived at the meat packing plant in Oklahoma City around 6:30 p.m. without incident. There was no evidence he had been drinking. He loaded his truck with 40,000 pounds of meat and headed back towards Wichita, traveling north on the four-lane Interstate Highway 35. At approximately one o'clock Saturday morning, his truck jackknifed and the weight of the trailer caused the truck to roll over on its top. Poole was thrown through the windshield, pinned under the truck, and killed almost instantly.

There were no witnesses to the accident, but officers talked to several people who came immediately upon the scene. One witness stated Poole passed his car a short time before the accident, going about 70 mph on a downhill grade. No witnesses reported Poole had been driving in an erratic or unusual manner. Poole's speed was estimated on the accident report to be 65 mph before contact, and 40 mph at contact.

Officer Gary Brower found marks on the median which showed Poole had drifted left onto the median for about 375 feet. The tire marks showed Poole had then turned a hard right, as if he had suddenly awakened and tried to get back up on the road. The sharp turn caused the truck to jackknife and flip. The officers on the scene could find no mechanical defect to explain the accident. Nor could they find paint or any other indication that another vehicle had sideswiped Poole and caused him to go into the center median.

Inside the truck and on the ground around the truck the officers found some beer cans, both full and empty. There were three or four empty cans and about the same amount of full beers, still cool, some of them still in a sack. Poole's hands were greasy as if he had been working on his truck or someone else's vehicle. The officers did not notice any grease on the beer cans.

Poole should have passed the point where the accident occurred at about 7:30 p.m. Efforts to determine how he spent the six hours between the time he left the meat packing plant and the time of his accident were futile. Officer Brower concluded after his investigation that the cause of the accident was that Poole had gone to sleep.

Oklahoma has a policy of obtaining a blood alcohol reading on all fatalities to determine what percentage of fatalities are caused by alcohol. Poole's body was therefore transported to an emergency room at about 2:42 a.m. and a coroner examined the body. He noted the body smelled of alcohol, and in talking to a patrolman, he learned there were alcohol containers around the vehicle at the time of the accident. Trooper Brower had not noticed the body smelled of alcohol. The only smell he could detect was that of spilled diesel fuel. There was a notation on the traffic report, however, which indicated one of the officers had noticed the smell of alcohol.

The coroner drew blood with a syringe used for the express purpose of withdrawing blood specimens for alcohol testing. There was no evidence the test was not performed in a proper and timely manner. The blood sample was sent to the state's forensic toxicologist, who normally tests blood samples from traffic accidents. He found no sign of tampering and no evidence of irregularities in testing. The blood was found to contain .13% by weight/volume of ethyl alcohol. The toxicologist was of the opinion that an alcohol level of .08% and above causes almost all drivers to be impaired.

After learning of the alcohol level, Officer Brower testified the accident could have been caused by alcohol and said in his opinion a person with a .13% alcohol level would have slower reactions and impaired response. He noted the impairment would be greater if the person was not used to the effects of alcohol.

Patrick Glynn, an independent forensic chemist, testified on behalf of appellant that it was not possible for a man of Poole's height and weight to have a .13% blood alcohol level from only three or four beers unless raw alcohol had contaminated the blood sample. His testimony was not mentioned in the briefs or at oral argument. We therefore find appellant has abandoned the use of Glynn's theory as a possible explanation for the test results.

Appellant met her burden under K.S.A.1987 Supp. 44-501 to establish her right to compensation. The burden of proving a defense to the claim then shifted to the employer. Earp maintains Poole was not eligible for compensation because death resulted "substantially from the employee's intoxication...." K.S.A.1987 Supp. 44-501.

The administrative law judge denied compensation after the hearing, finding Poole's death was substantially caused by Poole's "excessive use of alcohol." The findings of fact provide:

"1. At the time of his accidental injury, on September 21, 1985, the Claimant's blood had an ethyl alcohol content of 0.13% weight per volume.

"2. The Claimant's blood-alcohol content was a result of the Claimant's deliberate and intentional ingesting of alcoholic liquids prior to driving.

"3. At the time of the accidental injury on September 21, 1985, and as a result of the Claimant's alcohol consumption, the Claimant's driving ability was very substantially impaired. This impairment included the Claimant's inability to drive his truck in a safe manner, and the Claimant's inability to remain fully alert while driving that truck on September 21, 1985.

"4. As indicated, the immediate cause of the Claimant's death was the accidental injury on September 21, 1985. However, that injury on September 21, 1985, was caused by the Claimant's intoxication [sic ] of alcoholic liquid. As a result of his intoxication, the Claimant became inattentive while driving, resulting in the truck going out of control and wrecking."

The director of the workers' compensation division reversed the administrative law judge's order and awarded compensation. The reasons given for reversal are as follows:

"The Director finds the claimants herein should be awarded benefits as the evidence does not show that the decedent's injury and death was caused substantially by his intoxication. The evidence shows the decedent had a blood alcohol content of .13%, however, that does not address the question. The speculation the decedent may have fallen asleep because he was tired or because he was under the influence of alcohol does not address the question. While a blood alcohol content of .13% may constitute intoxication for purposes of laws regarding the regulation of motor...