Opinion
CLAIM NO. E216917
OPINION FILED SEPTEMBER 5, 1996
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant appeared Pro se.
Respondent represented by J. MICHAEL PICKENS, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
Respondent appeals from a decision of the Administrative Law Judge filed November 16, 1995 finding that claimant is entitled to workers' compensation benefits associated with his injury which occurred on October 11, 1992. In our opinion, a preponderance of the credible evidence shows that claimant's left hand injury was substantially occasioned by intoxication.
This claim occurred prior to the effective date of Act 796 of 1993. As a defense to this claim, respondent contends that claimant's injury was substantially caused by intoxication. Ark. Code Ann. § 11-9-401 (a)(2) (1987) provides:
. . . [T]here shall be no liability for compensation under this chapter where the injury or death from injury was substantially occasioned by intoxication of the injured employee or by willful intention of the injured employee to bring about the injury or death of himself or another. A.C.A. § 11-9-401 (a)(2)(1987).
Ark. Code Ann. § 11-9-707 (4) (1987) provides a statutory presumption that the injury did not result from intoxication of the injured employee while on duty. Consequently, the burden of proof is on respondent to show by a preponderance of the evidence that the employee's injury was substantially occasioned by his intoxication. Country Pride v. Holly, 3 Ark. App. 216, 624 S.W.2d 443 (1981).
In our opinion, the evidence that claimant's blood alcohol level was .198 in conjunction with the other evidence which eliminates any other apparent cause for the accident constitutes sufficient evidence to find that claimant's injury was substantially occasioned by his intoxication.
It is undisputed that claimant had been drinking. Claimant readily admits that prior to the accident, he had consumed at least "three or four" beers. Additionally, claimant acknowledged that the night before the accident he had consumed alcoholic beverages. The evidence clearly reveals that claimant's blood alcohol level was .198, nearly two times the legal limit in Arkansas. Obviously, claimant was under the influence of alcohol while at work.
The circumstances surrounding claimant's accident indicate that his intoxication substantially occasioned the injury. Claimant's testimony, albeit not exactly the most credible, is that he has had more than one close call with the auger. In fact, claimant had testified that at one time his glove had gotten caught in the auger but he was able to jerk his hand out. Claimant testified that he injured himself because he misjudged how far into the auger he had placed his hand. This illustrates impaired judgment of depth perception. In our opinion, this impaired judgment is due to claimant's intoxication. There is no evidence that the machine malfunctioned or that claimant was pushed into the auger. Clearly, claimant's impaired depth perception is the only cause of the accident, and we find that claimant's impaired depth perception is related to the .198 blood alcohol level. Accordingly, we find that respondent proved by a preponderance of the evidence that the claimant's injury was substantially occasioned by intoxication. Therefore, claimant is not entitled any workers' compensation benefits.
We do not find any of claimant's self-serving arguments persuasive. Claimant seems to suggest that perhaps the blood containing the .198 blood alcohol level may have come from another patient. However, there is no testimony to corroborate this allegation. In fact, there is persuasive evidence that the blood taken and tested is claimant's blood. Furthermore, claimant seems to suggest that there might have been some problem with the chain of custody. However, we find no evidence that the blood sample from claimant was tampered with in any way. Claimant simply hints at the possibility without offering any proof. Accordingly, we reverse the decision of the Administrative Law Judge.
IT IS SO ORDERED.
Commissioner Humphrey dissents.