Sidney for Sidney v. Raleigh Paving & Patching, Inc.

• Decision Date: 02 March 1993
• Docket Number: No. 9210IC110,9210IC110
• Citation: 426 S.E.2d 424,109 N.C.App. 254
• Court: North Carolina Court of Appeals
• Parties: Hope SIDNEY, Guardian ad litem for DuWayne SIDNEY, Minor, Jerry L. Horton, Deceased Employee, Plaintiff, v. RALEIGH PAVING & PATCHING, INCORPORATED, Employer, and Nationwide Mutual Insurance Company, Carrier, Defendants.

Page 424

426 S.E.2d 424

109 N.C.App. 254

Hope SIDNEY, Guardian ad litem for DuWayne SIDNEY, Minor Jerry L. Horton, Deceased Employee, Plaintiff, v. RALEIGH PAVING & PATCHING, INCORPORATED, Employer and Nationwide Mutual Insurance Company, Carrier, Defendants.

No. 9210IC110.

Court of Appeals of North Carolina.

March 2, 1993.

Charles R. Hassell, Jr., Raleigh, for plaintiff-appellant.

Carol M. Schiller, Raleigh, for defendants-appellees.

LEWIS, Judge.

The plaintiff in this action, Hope Sidney, is the mother and guardian ad litem for DuWayne Sidney, the minor child of the decedent, Jerry L. Horton. The decedent, who worked as a driver and laborer for Raleigh Paving & Patching, Inc. ("Raleigh Paving"), was seriously injured in a traffic accident on 9 April 1986, when the truck he was driving ran off the road. Decedent was diagnosed with a brain stem contusion and died 13 April 1986. It is undisputed that Raleigh Paving was the employer of decedent at the time of the accident and that the parties are covered by the Workers' Compensation Act.

On 15 April 1986, notice of the accident was given to Raleigh Paving pursuant to N.C.G.S. § 97-22. Raleigh Paving defended the worker's compensation claim on the basis that decedent was intoxicated at the time of the accident and thus, barred from recovery by N.C.G.S. § 97-12. A hearing was initially held before Deputy Commissioner Scott Taylor who denied plaintiff's claim on 13 September 1990. In his opinion Deputy Commissioner Taylor specifically found that the decedent was intoxicated at the time of the accident and that the decedent's intoxication was a cause of the decedent's death.

On 3 October 1990, plaintiff appealed to the Full Industrial Commission from the opinion and award entered by Deputy Commissioner Taylor on the ground that there was no evidence that the decedent's intoxication was a proximate cause of the accident. The case came before the Full Commission for review on 11 September 1991 and on 24 September 1991 the Full Commission issued its opinion and award affirming and adopting the opinion of Deputy Commissioner Taylor. Plaintiff appealed to this Court on 15 October 1991.

The sole issue presented by this appeal is whether the defendants presented sufficient competent evidence to establish the defense of intoxication. N.C.G.S. § 97-12 (1991) provides in pertinent part:

No compensation shall be payable if the injury or death to the employee was proximately caused by:

(1) His intoxication, provided the intoxicant was not supplied by the employer or his agent in the supervisory capacity to the employee; ....

We find that competent evidence existed in the record to establish the defense of intoxication and to justify the Commission's conclusion that plaintiff's claim was not compensable under the Workers' Compensation Act. Therefore, we affirm the decision of the Full Commission.

It has been said by our Supreme Court that:

In passing upon an appeal from an award of the Industrial Commission, the reviewing court is limited in its inquiry to two questions of law, namely: (1) Whether or not there was any competent evidence before the Commission to support its findings of fact; and (2) whether or not the findings of fact of the Commission justify its legal conclusions and decision.

Inscoe v. DeRose Indus., Inc., 292 N.C. 210, 216, 232 S.E.2d 449, 452 (1977). Therefore, the opinion of the Industrial Commission in this matter is conclusive on this Court if it is supported by any competent evidence, Priddy v. Cone Mills Corp., 58 N.C.App. 720, 294 S.E.2d 743 (1982), and can only be set aside if there is a complete lack of competent evidence. Carrington v. Housing Auth., 54 N.C.App. 158, 282 S.E.2d 541 (1981). It is well established that the burden of proof for the defense of intoxication is on the employer. Harvey v. Raleigh Police Dept., 85 N.C.App. 540, 355 S.E.2d 147, disc. rev. denied, 320 N.C. 631, 360 S.E.2d 86 (1987). However, the employer does not have to disprove all other causes or prove that intoxication was the sole cause of the injury. Anderson v. Century Data Sys., Inc., 71 N.C.App. 540, 322 S.E.2d 638 (1984), disc. rev. denied, 313 N.C. 327, 327 S.E.2d 887 (1985). Instead, the employer only has to show that it is more probable than not that intoxication was a cause in fact of the injury. Id. In light of the standard by which we review matters from the Industrial Commission, we now look to the evidence that was heard by the Deputy Commissioner and reviewed by the Full Commission.

The evidence presented at the hearing before Deputy Commissioner Taylor tended to show that on the morning of the accident the decedent was driving a truck for Raleigh Paving from the office to a job site. During the day the decedent was responsible for performing work at several job sites. On at least one trip between job sites, the decedent stopped and bought alcohol. At the end of the day, while returning to the office, the decedent again stopped at a store to purchase alcohol. With the decedent were fellow employees Malcolm Wilkerson and Frank Farrar. All three of the employees drank from the pint that was purchased, but Farrar testified that the decedent and Wilkerson drank the most.

After the employees' brief frolic, they resumed their journey back to the office. At approximately 6:00 p.m., while attempting to pass another vehicle, the decedent lost control of the truck and was thrown out as it ran off the road. Testimony revealed that at the time of the accident, the decedent was operating the truck at a speed of approximately 70 m.p.h. on a highway with a posted speed of 55 m.p.h. Immediately after the accident, the decedent was taken to a nearby hospital where blood samples were taken. These blood samples indicated that the decedent had a blood alcohol level of 202 milligrams per decaliter approximately...