Smith v. Workers' Comp. Appeals Bd.

• Decision Date: 21 September 1981
• Citation: 176 Cal.Rptr. 843,123 Cal.App.3d 763
• Parties: Cheryl J. SMITH, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Ed Smith Welding et al., Respondents. Civ. 6321.
• Court: California Court of Appeals Court of Appeals

Page 843

176 Cal.Rptr. 843

123 Cal.App.3d 763

Cheryl J. SMITH, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Ed Smith Welding et al., Respondents.

Civ. 6321.

Court of Appeal, Fifth District, California.

Sept. 21, 1981.

Sims, Solomon & Konnoff and Michael S. Konnoff, Bakersfield, for petitioner

Emerson & Yrulegui and Richard J. Yrulegui, Fresno, for respondents.

OPINION

PAULINE DAVIS HANSON, Associate Justice.

Petitioner Cheryl J. Smith, widow of Eddie G. Smith, seeks review of a decision of the Workers' Compensation Appeals Board (WCAB) denying reconsideration of petitioner's claim for death benefits and burial expenses; the decision adopted and incorporated the report of the workers' compensation judge disallowing benefits on the ground that the decedent was intoxicated at the time of the accident and the intoxication was the proximate cause of death.

Eddie G. Smith, employed by Ed Smith Welding of Bakersfield, California, died February 20, 1979, in an automobile accident while returning to his office from a jobsite. On April 3, 1979, petitioner filed an application for death benefits and burial expenses with the WCAB. She was subsequently appointed guardian ad litem for the Smiths' two children. A hearing was held before the workers' compensation judge, who prepared the following summary of the evidence.

Bobby Burton Morris (Morris) testified that he was employed by Smith Welding and that, on the day of the accident, he began work at the shop at 6:30 a. m. Eddie Smith (Smith) was already there and outlined the work he wanted done. He told Morris to go to Mount Able and to load trucks with clay. Morris left the shop about 7:15 a. m. in a pickup, which had a company radio, and arrived at Mount Able about 8:30 a. m., driving on curvy, mountainous, blacktop road with a single lane each way. At the mountain, it was raining and snowing off and on; this weather continued all day. Around noon, Morris called Smith on the radio and asked for more trucks.

About 6 p. m., as they were leaving the mountain, a dump truck with a backhoe went around a curve and the backhoe fell off the trailer. Morris called Smith, who asked what equipment was needed and stated that he would come up. Smith arrived at the scene around 8 p. m. and seemed normal to Morris as far as sobriety was concerned; he was properly dressed for the cold.

Smith asked where Morris wanted the equipment, and then hooked slings to the backhoe, which was some 20 feet off and below the road. It was dark; the weather was cold, it was raining, and the soil was muddy. Morris went down to the backhoe with Smith to help hook it up; Morris fell going down the bank, but Smith did not slip nor fall.

They worked for about two hours to right the backhoe; the weather was still rainy, with a mixture of snow, and very cold. Because it was late, they left the backhoe there to be recovered the next day. At the site were the witness' pickup, Smith's pickup, a hydrocrane, two dump trucks, and a trailer. They convoyed out of the area, Smith leading, and Morris bringing up the rear. It was still raining intermittently. Smith left in his pickup and Morris turned the hydrocrane around. Morris then called Smith on the radio and said he was ready. It was raining very hard at that time. Everyone had been told to take the Maricopa Highway to Old River Highway.

As Morris and Smith talked on the radio, they joked; Smith said he was low on gas and not to pass him. Smith's radio went silent. Radio silence can occur on going "into a dead area (in the mountains) where you are cut out all at once." Smith made no sign-off on the radio as was always done. At that time Morris was following the large crane, which had seven red lights. Although Morris was from five to feet behind the crane he could not see it because of the rain.

On cross-examination, Morris said there were six vehicles and a trailer coming down the mountain. Smith was probably one-eighth to one-quarter of a mile ahead of Morris as Morris turned the crane around. Smith's pickup was moving as they talked on the radio, but Morris did not know how fast it was traveling, nor how far ahead it was; Morris did not know the weather conditions at Smith's location at the time Smith's radio cut off.

Ron Chambers (Chambers) was sworn and testified that he had known Smith for five or six years, and intimately for the past three years. In 1979, Chambers was off work for back surgery; he managed the Eddie Smith Softball Team. At noon on February 20, 1979, he saw Smith at the ballpark at Sam Lynn Park on North Chester and remained with Smith that day until Smith's death. When the witness met Smith at the park, Smith was waiting for trucks to bring clay from the mountains to be put on the diamond. They made several trips back and forth to the ballpark.

When they first met at noon, each of them drank a can of Coors beer. They then went to a bar in Oildale and had a couple of beers. They went to the shop, and returned to the ballpark. At around 5:30 p. m., they were at the Highland Inn when Smith got a call about an accident on the mountain. They went back to Smith's shop, and Smith called the foreman at the accident site by radio; Smith, Chambers, and another man each drove a truck to the accident site, leaving around 6:30 p. m. and arriving at the scene about 8 or 8:15 p. m.

The road leading to the scene of the accident followed a steady incline. It was raining and getting cold. Smith parked the pickup and gave instructions to Chambers on placing the trucks and using the winch. They were at the scene almost two hours, and then decided to leave the backhoe and come back in the morning to get it. The weather was miserable and cold with a driving rain, almost like sleet. Smith was quite disgusted and upset because it had been a bad day, and the job should have been over at 4 p. m.

While they were there, Smith did not appear to be intoxicated or to have any problems. When they were ready to leave, Smith took off "like a shot from a cannon." The witness tried but could not keep up with Smith, and eventually lost sight of the taillights of Smith's vehicle. It was raining very hard.

Chambers stated on cross-examination that he had intended to ride with Smith but, when they started to leave the accident site, Smith "took off like a shot" down the mountain. Chambers rode as a passenger in an A-frame. The road was curving, winding, and downhill, and it was raining heavily. In the witness' opinion it was not prudent to start that fast.

Chambers explained that he and Smith were at the Highland Inn twice for a total of about two hours. They first went to the Highland Inn around 1 p. m. Smith had a six-pack of Coors beer in his truck, and they each had had one beer. Smith then wanted to use the phone, so they went to the Highland Inn. where each of them had another beer before returning to the shop. The witness did not know what happened to the six-pack. They went back to the Highland Inn, which served lunches, for about one and one-half hours, and Smith had four mixed drinks. When they left the Highland Inn in Smith's truck after the phone call, the four cans of beer were still in the truck.

At the scene of the equipment accident, Smith spent most of his time coordinating the job of righting the backhoe. Chambers could not remember the distance from the backhoe to the bank where the trucks were; however, most of the time they were there, Smith was in Chambers' line of sight and Chambers saw no one drinking.

Chambers testified that he had observed Smith's drinking on a daily basis. Chambers himself drank about four cans of beer every day, and on a "good night," 12 cans. He did not consider himself an alcoholic. Smith sometimes drank mixed drinks, but the witness did not consider Smith to be an alcoholic or to have a drinking problem. The night before the accident, Smith was drinking and playing pool with his friends. It was not unusual for Smith to drink quite a bit, but, in Chambers' opinion, Smith did not drink to excess.

Jude Roger Hayes, M.D., a forensic pathologist in Tulare, was sworn and testified that he had been in private practice two years. He was engaged by Emerson and Yrulegui to review the coroner's autopsy report of blood alcohol determination and the California Highway Patrol accident report. The blood alcohol sample was taken at 11 a. m. on February 21, 1979, the morning following the accident. In Dr. Hayes' opinion, the handling of the specimen was proper. It showed a blood alcohol content of .25 percent.

When asked a hypothetical question as to the cause of death of a 36-year-old white male, 5 feet, 8 inches tall, weighing 180 pounds, who arose before 6:30 a. m. on the date of death, and who at noon at a ballpark consumed one beer and was at a bar for one and one-half hours consuming approximately four mixed drinks, and at 5:30 to 6 p. m. received a call that a piece of his equipment was stuck in the mud in the foothills, and who drove to the scene and was physically active there (if alcohol were consumed by him between leaving the Highland Inn and the time of death it was unknown), and who around 10 to 11 p. m., "took off" down the mountain "like a shot," Dr. Hayes answered that in his opinion death was caused by the traumatic injuries received.

Asked about the effect of the specified blood alcohol content on physical condition, Dr. Hayes stated that in his opinion Eddie Smith would have been under the influence of alcohol and his driving ability would have been impaired. With a blood alcohol level of .25 percent, the man would be "obviously clinically drunk" to an observer, if he were not a regular consumer of several alcoholic drinks per day. An individual who has a .25 percent alcohol level and no alcohol tolerance would have a slurring of speech, an unsteady gait, sleepiness, and signs of unconsciousness. A person who consumes large amounts of alcohol might show no outward signs of intoxication,...