Opinion
11-P-97
12-07-2011
DERRICK JONES'S CASE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this sad case, the employee, Derrick Jones, was seriously injured in a motor vehicle accident on his way to work as a welder in Haverhill. His attempt to secure workers' compensation benefits was denied, pursuant to G. L. c. 152, § 27, in that the administrative judge determined that the employee's injury was a direct cause of his own serious, wilful misconduct. Accordingly, the administrative judge declined to award benefits. The reviewing board affirmed.
'If the employee is injured by reason of his serious and wilful misconduct, he shall not receive compensation.' G. L. c. 152, § 27.
The employee appeals, claiming insufficiency of proof, improper burden shifting, and the impropriety of political considerations.
The findings of the judge indicated that:
'The accident may have been caused by a number of factors. There is no way of quantifying the relative degree of the importance of these factors. It was dark. The employee was unfamiliar with the route. The road was poorly lit. The road is a fast road which requires a driver to slow down if it is their intention to take the off ramp. Signage was limited. The employee may have been distracted by his call to his girlfriend and his frustration with not finding the incinerator. I reject the argument that the employee was exhausted. He had not worked in several days and had slept the night before and most of the day of the injury. I also reject the argument that the road was icy. Officer Miller did not observe any icy conditions and it had not snowed for several days and the daytime temperatures were in the mid 40s. The employee's expert opines and I find that 'at a BAC slightly higher than 0.16%, it would be expected that [the employee's level of intoxication] would have been a significant factor in the accident.' After considering all of the testimony and analyzing the exhibits I find that the employee's intoxication was in fact a significant factor in the accident. The main road was straight and the exit ramp clearly required a driver to slow down. The employee did not come close to making the exit. He was traveling at a high rate of speed off of the road and into the woods. Even with the factors of the dark and unfamiliar place this would not cause an unimpaired person to have such a horrendous accident. I find that if the employee was confused it was in large part due to his impairment that was 'significant.' I find causation between the impairment due to alcohol consumption and the accident.'
We agree with the employee that the case law indicates that, generally speaking, intoxication, by itself, does not require a finding of 'serious and wilful' misconduct within the meaning of § 27. See Eldridge's Case, 310 Mass. 830 (1941). Compare Dupuis v. Phillip Beaulieu Home Improvement, 19 Mass. Workers' Comp. Rep. 33, 34-35 (2005) ('While the employee is correct in citing Eldridge's Case . . . , that intoxication of the employee does not require a finding that the injury resulted from the employee's intoxication, in this case I am persuaded that in fact the intoxication did result in [the employee's] fall and injury. In this I follow the law as suggested in In re Von Ette, 223 Mass. 56, 59 [1916][,] where the Supreme Judicial Court suggests that if the employee fell from the roof due to a condition of intoxication, he would not be entitled to compensation'). Indeed, the reviewing board so noted:
'Here, the judge's decision evinces clear and appropriate fact-finding, anchored in the evidence. It is undisputed that when examined at the hospital an hour after the motor vehicle accident, the employee had a blood alcohol level of 0.16%. The judge adopted the employee's expert's opinion that '[a]t a BAC slightly higher than 0.16%, it would be expected that [the employee] would have been impaired by alcohol and that this impairment would have been a significant factor in the accident.' . . . While the fact of the employee's intoxication did not require a finding that the motor vehicle accident, and his related injuries, resulted from the intoxication, . . . the evidence adopted by the judge was sufficient to permit him to so conclude.
'Moreover, the employee's first BAC level was over twice the legal limit. . . . By statute, this fact gives rise to a permissible inference he was under the influence of intoxicating liquor at the time of the accident. . . . That the Commonwealth did not prosecute the employee criminally is irrelevant to the reality of his condition at the time of the accident. A finding of serious and wilful misconduct does not require a conviction of a crime. However, an act which would give rise to a permissible inference of intoxication, and thus sustain a conviction under the criminal laws of the Commonwealth -- beyond a reasonable doubt, no less -- amply, and logically, supports a finding that the employee had engaged in serious and wilful misconduct for the purposes of § 27.' (Footnotes omitted.)
Here, at bottom, there was substantially more evidence, as indicated in the judge's decision, than mere intoxication.
As for the other argument concerning an improper shifting of burdens, there is no dispute that § 27 constitutes an affirmative defense and that the employer bore the burden. There are no indications in the record that the judge misunderstood this proposition or improperly applied it.
The plaintiff asserts in his brief that 'the [j]udge never even identifies in his hearing decision that the burden of proof shifted from the [e]mployee to the [i]nsurer to prove that the employee was engaged in serious and wilful [mis]conduct.' To this we merely observe that if nothing the judge said or did suggested an improper burden shift, we need not assume that one occurred.
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Concerning the public policy argument, the employee suggests that the judge ruled as he did due to the unpopularity of drunk driving. Once again, there is no record support for this suggestion.
While we note that the evidence was conflicting and the judge could have rendered a different decision, particularly on causation issues, this does not mean that his decision lacked substantial evidentiary support or was otherwise arbitrary or capricious.
For these reasons, as well as for substantially those in the brief of the appellee, we affirm.
Decision of reviewing board affirmed.
By the Court (Kantrowitz, Fecteau & Carhart, JJ.),