Stewart v. Oliver B. Cannon & Son, Inc.

• Decision Date: 17 November 1986
• Citation: 551 A.2d 818
• Court: Delaware Superior Court
• Parties: Joseph STEWART, Appellee, v. OLIVER B. CANNON & SON, INC., Appellant. . Submitted:

Page 818

551 A.2d 818

Joseph STEWART, Appellee, v. OLIVER B. CANNON & SON, INC., Appellant.

Superior Court of Delaware,

New Castle County.

Submitted: Nov. 17, 1986.

Decided: June 22, 1988.

Clifford B. Hearn, Jr., Wilmington, for appellee.

Alfred M. Isaacs and James B. Ropp of of Morris, James, Hitchens & Williams, Wilmington, for appellant.

OPINION

GEBELEIN, Judge.

This is an appeal of a March 12, 1986 finding of the Delaware Industrial Accident Board (hereinafter, "the Board") that Joseph Stewart (hereinafter, "appellee") was involved in a compensable industrial accident. The Board found appellee to be totally disabled from August 21, 1985, and thus awarded disability payments, reasonable medical expenses and attorney's fees, as costs, against Oliver B. Cannon & Son, Inc. (hereinafter, "appellant").

The appellee was injured on August 21, 1985, when he fell from a scaffolding while working as a painter for appellant at the General Motors Plant on Boxwood Road. The scaffolding was not equipped with a safety railing and the appellee was not using a safety harness at the time of the fall. He admittedly had consumed two 12 ounce cans of beer while on his "lunch break", approximately two and one half (2 1/2) hours prior to his fall. However, a blood serum alcohol test performed on a specimen drawn from appellee two (2) hours after the fall, at the Medical Center of Delaware, suggests that the appellee may have consumed additional alcohol at various other times during the work shift.

The appellant does not dispute appellee's contention that his injuries were incurred when he fell from the scaffolding on the job site. However, appellant does contend that the appellee forfeited his right to compensation under 19 Del.C. § 2353 by working while in an intoxicated condition and by failing to use available safety equipment. The Board ruled against the appellant on this argument. The issue at bar is whether the Board's finding that appellant failed to meet its burden of establishing by a preponderance of the evidence that appellee was intoxicated and had willfully failed or refused to use a reasonable safety appliance is supported by substantial evidence. GMC v. Freeman, Del.Supr., 164 A.2d 686 (1960); Globe Union, Inc. v. Baker, Del.Super., 310 A.2d 883 (1973), aff'd, Del.Supr., 317 A.2d 26 (1974); Johnson v. Chrysler Corp., Del.Supr., 213 A.2d 64 (1965) and Hebb v. Swindell-Dressler, Inc., Del.Super., 394 A.2d 249 (1978).

The Delaware Code expressly prohibits the recovery of worker's compensation benefits for injuries resulting from a worker's voluntary intoxication or willful failure or refusal to use a reasonable safety appliance. This statute provides in pertinent part:

If any employee be injured as a result of his intoxication ... [or ] ... because of his willful failure or refusal to use a reasonable safety appliance provided for him or to perform a duty required by statute, he shall not be entitled to recover damages in an action at law or to compensation or medical, dental, optometric, chiropractic or hospital services under the compensatory provisions of this chapter. The burden of proof under this subsection shall be on the employer. 19 Del.C. § 2353(b). (Emphasis added.)

The provisions of § 2353(b) are a statement of public policy, clear and unequivocal on their face, creating a complete defense in cases involving intoxicated employees, Hopper v. F.W. Corridori Roofing Co., Del.Supr., 305 A.2d 309 (1973). However, there is no definition of intoxication in 19 Del.C. § 2301, the general definition section of the worker's compensation act.

I.

Appellant first urges that the Board should have given great weight to the Delaware Motor Vehicle Statute adopting a .10% blood alcohol concentration (BAC) as a conclusive presumption of intoxication for the purposes of driving an automobile. 21 Del.C. § 4177. At the hearing, appellant offered into evidence testimony from two witnesses, a physician and a toxicologist, that the appellee's blood alcohol concentration was somewhere in the range between .110% and .117% (excluding the variance of error), depending upon the factor used in calculating the conversion from serum blood alcohol to whole blood alcohol. Appellant argues that 21 Del.C. § 4177 is an expression of public policy by the General Assembly, and, that the .10% BAC standard thus should be given great weight in determining intoxication for purposes of workman's compensation law.

Appellant refers the Court to Smith v. Roads Commission, 240 Md. 525, 214 A.2d 792 (1965), in support of this position. In Smith, the decedent employee, while on his way home from work, drove his pickup truck off the road and struck a telephone pole. He sustained injuries which caused his death. A specimen of blood taken during the post mortem examination revealed a BAC of .27%. In a drunken driving prosecution in Maryland, at the time of the Smith case, .15% BAC was prima facie evidence that the defendant was under the influence of intoxicating liquor. Md.Code Ann., Art. 35 § 100(a)(3) (1957 Cum.Supp.1965). The Maryland Court of Appeals found that the evidence of intoxication was both "overwhelming and unchallenged " (emphasis added). It also found that a .27% BAC would indicate a high level of intoxication accompanied by a decrease in ability to perform finer motions, such as braking and steering an automobile, and that many people "pass out" at this level. Since the Court in Smith was deciding a workman's compensation claim that involved the death of an employer driving a motor vehicle while intoxicated, it necessarily considered the appropriate State statute restricting the use of intoxicants while driving a motor vehicle. It did not extend the application of its decision to workman's compensation cases beyond these facts. The circumstances giving rise to the work-related incident and the substantially higher BAC further distinguish the Smith decision from the case at bar and limit its application accordingly.

While the Board may consider the provisions of 21 Del.C. § 4177 as a legislative expression of public policy regarding being under the influence of intoxicating liquor, such provisions are not controlling in a workman's compensation case. Had the legislature intended to adopt a .10% BAC as either prima facie evidence of intoxication or a conclusive presumption of intoxication in workman's compensation cases affected by 19 Del.C. § 2353(b), it could easily have done so. Based on the foregoing, this Court cannot conclude, as suggested by appellant, that the terms "intoxication" and "under the influence" of intoxicating liquors are synonymous for all purposes. ¹ See, e.g., Sumner v. State, 164 Tex.Cr.R. 262, 298 S.W.2d 577 (1956); Taylor v. Joyce, 4 Cal.App.2d 612, 41 P.2d 967, 968 (1935); Uldrich v. State, 162 Neb. 746, 77 N.W.2d 305 (1956); Eason v. Weaver, 5th Cir. 557 F.2d 1202 (1977); State v. Durrant, Del.Supr., 188 A.2d 526 (1963).

The public policy behind a strict law defining "under the influence" in driving cases is the extremely dangerous nature of driving a motor vehicle while even slightly impaired. This policy is directly related to the number of deaths and serious injuries sustained on the highways of this State. The policy behind the intoxication defense in workmen's compensation law is quite different. The employer is not to be required to compensate employees for injuries sustained by them which are the result of that employee's "intoxication". Thus, to prevail on this defense, the employer must clearly establish that actual intoxication caused the accident. Wills v. Penn Dell Salvage, Inc., Del.Super., 274 A.2d 144, aff'd Del.Supr., 282 A.2d 613 (1971); and Hopper, supra.

II.

The Court next looks to the evidence regarding intoxication. Appellant's toxicologist, a Deputy State Medical Examiner, testified that the appellee's BAC at the time of the injury was fairly high and that, in his opinion, appellee was under the influence. A clinical pathologist of the Medical Center of Delaware, testified as to the accuracy of the analyzer used to test the blood specimen and the hospital procedures used in such cases. Absent evidence to the contrary, the Court presumes that the tests were performed in a proper, careful and prudent manner. Judah v. State, Del.Supr., 234 A.2d 910 (1967). The pathologist testified to a 5% variance of error in analysis and the Deputy State Medical Examiner testified to a 25% variance of error in the conversion formula used in determining BAC from a serum blood sample. Testimony indicated that the combined variance of error in testing and ratio for blood serum to whole blood could change the appellee's BAC to less than .09%.

The Medical Center's pathologist specifically testified that the appellee's BAC was .11% approximately 2 hours after the fall. He stated on cross-examination that the factor for adjusting the results from blood serum to whole blood vary. The Deputy State Medical Examiner testified that it would take five (5) drinks to create an alcohol content of .11% in a person of the appellee's weight, that the BAC level of appellee would have been higher at the time of the accident, that appellee's judgment and perception would have been visibly impaired and that he would have been under the influence of alcohol. He further noted that a different ratio for blood serum to whole blood would change the BAC figures. Finally, the Deputy State Medical Examiner testified that the effects of an intoxicating beverage differ depending on the weight of the drinker, food in his stomach and prior drinking habits.

The job site supervisor who monitored the work on the evening of the injury, testified that the appellee was sober and had not been seen drinking on the job. This testimony was supported by the appellee's son, a painter who was working on the same job site. In addition, the job site superintendent testified that appellee, to his knowledge, was not drinking and was not...