STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


JEFFREY R FRIEND, Applicant 

JOHN FINK TRUCKING INC, Employer

LIBERTY MUTUAL FIRE INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 96031784


The administrative law judge issued his findings of fact and interlocutory order in this case on March 7, 1997, following a hearing on December 12, 1996. The employer and the insurer (the respondents) have submitted a petition for commission review of the administrative law judge's findings and order. Thereafter, both the respondent and the applicant submitted briefs.

Prior to the hearing, the respondents conceded jurisdictional facts and an average weekly wage of $461.29.
At the hearing, the issues were whether the applicant sustained a compensable injury on or about June 12, 1996, and the nature and extent of that injury. On appeal, the respondents contend the applicant was not working in the scope of his employment when injured, but was performing a personal errand. In addition, both parties ask the commission on appeal to resolve the respondents' claim for decreased compensation under Wis. Stat. 102.58 based on the testimony adduced at the hearing.

The commission has carefully reviewed the entire record in this case, including the briefs submitted by the parties. After consulting the administrative law judge concerning the credibility and demeanor of the witnesses, the commission hereby affirms his findings of fact, conclusions of law and interlocutory order, except as modified herein:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The fourth paragraph of the ALJ's preliminary recitals (the first full paragraph on page two of his decision) is deleted and the following is substituted therefor:

"At the hearing, the respondents alleged that the applicant was intoxicated at the time of the alleged injury, and the parties discussed a possible bad faith claim the applicant might bring against the respondent for failure to make timely payment. Neither of these `penalty' issues was listed in the notice of hearing, which referred only to primary compensation and medical expenses. In their briefs on appeal, the parties requested resolution of the `intoxication' issue under Wis. Stat. 102.58 based on the record made at the hearing. The possible bad faith claim, however, shall not be resolved at this time, although this order shall be left interlocutory to permit the applicant to pursue that claim.".

Immediately after the heading "FINDINGS OF FACT AND CONCLUSIONS OF LAW" in the ALJ's decision, insert

"The first issue in this case is whether the conceded accident causing injury was compensable; that is, whether the applicant sustained his injury while performing service growing out of and incidental to employment, and whether the accident causing the injury arose out employment. The second issue is whether, assuming the applicant establishes compensable injury, the applicant's compensation should be reduced by fifteen percent under Wis. Stat. 102.58.

"1. Compensable injury?".

The first six paragraphs of the ALJ's Findings of Fact and Conclusions of Law are affirmed and reiterated as if set forth herein.

The seventh paragraph of the ALJ's Findings of Fact and Conclusions of Law (first paragraph on page 6 of his decision) are deleted and following substituted therefor:

"2. Reduction of compensation for intoxication?

"As noted above, the applicant was taken to the Southwest Health Center Emergency Room after the work injury on June 12, 1996. The June 12 report of the emergency room doctor, Randall J. Kieser, M.D., states `alcohol was 0.122;' the June 12 report of Jerome A. Huebner, M.D., for reports `serum alcohol is 122.' This is construed to mean 0.122 percent by weight of alcohol in his blood.

"In addition, Dr. Huebner noted the applicant had an odor of alcohol about him, though the applicant told the doctor he had not been drinking for approximately 24 hours. Nonetheless, Dr. Huebner ordered medication for possible DT's. Dr. Kieser, too, noted a definite odor of alcohol about the applicant, but reported the applicant did not appear grossly intoxicated. Further, Douglas A. Palmer, M.D., who treated the applicant the following day reported the accident had been drinking steadily at the time he was working.

"Dr. Huebner listed `alcohol intoxication, acute and chronic' in his diagnostic assessment, and Dr. Kieser simply assessed `alcohol.' Indeed, alcohol intoxication was listed a secondary diagnosis on the applicant's final discharge note of June 16, 1996.

"However, the applicant denies he was intoxicated at the time of the accident. He denied telling Dr. Palmer he had been drinking steadily while he was working on the date of injury. He admitted he had drunk between 12 and 24 beers each evening for the several days before the accident. He admitted the number was probably closer to 24 the evening of June 11. However, he testified he drank no alcohol between 10:30 p.m. on June 11 and the time of the accident on June 12. He also testified he did not feel intoxicated at the time of the accident. Indeed, he testified he was able to handle work from 9:30 a.m. on June 12, and manage difficult maneuvers while backing his truck, without mishap.

"Keith Keuter, the farmer whose grain the applicant was unloading when injured, testified he had seen the applicant the day of the injury, both before and after the injury, and the applicant did not appear intoxicated. In fact, Mr. Keuter testified he had ridden in a pickup truck with the applicant shortly before the injury, and did not smell alcohol coming from the applicant.

"However, it must be concluded from this record that the applicant was intoxicated at the time of his injury. While Mr. Keuter did not notice an odor of alcohol, the fact is that both Dr. Huebner and Dr. Kieser did. Equally significant is Dr. Palmer's notation that the applicant had been drinking steadily at the time he was working. Moreover, the applicant's blood alcohol level at the time of the injury was 0.122 percent, a level exceeding the 0.10 percent level that constitutes a "prohibited alcohol level" under the state motor vehicle code. Wis. Stat. 341.01 (46m) and 346.63 (1). These facts discredit the applicant's testimony that he had had nothing to drink since 10:30 p.m. the evening before the accident.

"Regardless of whether the applicant's blood alcohol level by itself establishes intoxication, (1) Dr. Huebner included intoxication in his diagnosis for June 12 and in his discharge diagnosis. Further, the applicant's denial that he was intoxicated is not credible given Dr. Palmer's note. Finally, one might easily wonder whether someone with a blood alcohol level of 0.122 is a good judge of his own level of intoxication.

"The next question is whether the applicant's injury resulted from his intoxication. The applicant cites Haller Beverage Corp. v. ILHR Department, 49 Wis. 2d 233 (1970). In that case, a liquor salesman was killed while in the course of employment when he was in a one car accident and struck a bridge. A blood sample taken by the coroner revealed 0.29 percent alcohol by weight in the blood.

"The court first affirmed the commission's finding that the salesman in Haller was probably intoxicated based on expert testimony. On the issue of the causal connection between intoxication and the injury, the employer in Haller provided no evidence, expert or otherwise. Instead, the employer relied on evidence that the record did not show a mechanical failure or other cause for the accident. Noting that absence of testimony is not the same as the presence of testimony, the court concluded that the blood alcohol level alone, without corroborating proof, did not prove the causal relationship between intoxication and the accident. The court concluded that finding a causal connection would be speculative and conjectural, noting it had reached a very similar result in Massachusetts Bonding & Ins. Co. v. Industrial Commission, 8 Wis. 2d 606, 611-12 (1959).

"Of course, the supreme court has also held that intoxication does not need to be the sole cause of, but only a substantial factor in bringing about the injury. Milwaukee Forge v. ILHR Dept., 49 Wis. 2d 233, 237 (1970). The applicant's own testimony indicated that the job he was doing at the time of his injury required considerable concentration, spatial perception, and balance. While the applicant testified he did not feel his balance was impaired, that testimony simply is not credible, especially given the conflict in the record about whether the applicant was drinking at work on the date of injury.

"Indeed, the most reasonable inference on this record is that the applicant's balance was in fact impaired as a result of his intoxication. This impairment of balance, in turn, was a substantial factor in bringing about the loss of balance that led to the applicant's fall and injury. Given the record in this case, expert testimony is not necessary to prove the causal relationship between the work injury and the applicant's intoxication.

"Accordingly, the applicant's compensation for disability must be reduced by fifteen percent under Wis. Stat. 102.58.

"3. Award.

"The respondents produced no medical evidence to dispute the medical evidence relied upon by the applicant concerning the nature and extent of disability. The respondents also stipulated to the reasonability and necessity of the treatment set forth in applicant's exhibit A. Accordingly, the applicant is entitled to temporary total disability from June 12 to October 28, 1996, and temporary partial disability for the periods set out in applicant's exhibit F. Ordinarily, this would result in a total award for temporary disability of $6,753.37 (19.5 weeks of TTD at $307.53 per week, or $5,996.86) plus $756.53. In this case, that figure must be reduced by fifteen percent, yielding a total award for temporary disability of $5,740.36."

The eighth paragraph of the ALJ's Findings of Fact and Conclusions of Law is affirmed, and reiterated as if set forth herein.

The ninth paragraph of the ALJ's Findings of Fact and Conclusions of Law is deleted and the following substituted therefor:

"The fee for the applicant's attorney is set at $1,148.07, which is twenty percent of the compensation awarded herein. The attorney's fee and his costs in the amount of $126.76 shall be paid from the compensation now due the applicant."

The tenth paragraph of the ALJ's Findings of Fact and Conclusions of Law is affirmed and reiterated as if set forth herein.

The first sentence of the ALJ's Interlocutory Order is amended by deleting the first two clauses ending with semicolons and substituting:

"Within 30 days, the respondent and the insurance carrier shall pay to the applicant, Jeffrey Friend, the sum of Four thousand five hundred ninety-two dollars and twenty-nine cents ($4,592.29); to the applicant's attorney, Craig R. Day, the sum of One thousand one hundred forty-eight dollars and seven cents ($1,148.07) in fees and One hundred twenty-six dollars and seventy- six cents ($126.76) as reimbursements for costs;".

Delete the text of the ALJ's "NOTE:" at the end of his decision and substitute:

"NOTE: Penalty claims such as claims pursuant to Wis. Stat. 102.18 (1)(bp), 102.22 (1), and 102.35 (3) may be brought after all claims for primary compensation have been exhausted."

ORDER

The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified are affirmed.

Dated and mailed: November 6, 1997
frienje.wrr : 101 : 5   ND 3.11  7.17  7.18

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

MEMORANDUM OPINION

On appeal, the respondents contend that the ALJ erred in concluding that the applicant was performing services arising out of and incidental to employment at the time of his injury. Specifically, the employer argues that the applicant deviated from employment because the truck was already full when the applicant mounted the grain bin. Under the employer's theory of the case, the applicant mounted the bin for no employment purpose, but simply to correct a mechanical problem in the bin for the sole benefit of the farmer (Keuter) who shared a farm with the applicant's "grandfather-in-law" (Bevan).

The respondent reaches this conclusion because Keuter testified that when he saw the truck after the injury, it looked properly filled or perhaps overfilled. Transcript, page 19. The employer argues that the trailer must therefore have been filled when the applicant mounted the bin, so there was no employment purpose in mounting the bin.

However, the commission sees two problems with this line of reasoning. First, Keuter testified that dropping the ladder in the bin would create a motion that would force corn into the center hole. The respondent emphasizes that the applicant testified the bin was clogged; this was not a case where the grain had "coned" away from the hole in the bottom of the bin. The employer argues dropping the ladder would not have cleared the clog, especially as the ladder became caught in the augur. However, Keuter testified that he was still certain the ladder falling into the bin would have caused more grain to fall in the truck. Transcript, pages 33-35.

The second problem is that Keuter testified that, when he inspected the bin after the accident, the grain had all "coned" away from the hole at the bottom of the bin. Transcript, page 16. Thus, if the grain had originally stopped because of a clump, the applicant must have loosened the clump with the ladder, causing the truck to continue to fill with grain after the applicant had fallen, until the grain coned away from the hole at the bottom. This explains why the truck looked fully loaded, or slightly overloaded, after the accident despite the applicant's testimony it was not filled before the accident.

It is of course possible the bin was not clogged before the applicant mounted it and dropped the ladder, but simply that the grain had "coned" away. In that case, the applicant would not have been simply fixing a mechanical problem for the sole benefit of Keuter and his grandfather-in-law. In any event, the applicant testified he had not finished filling his truck when he climbed up the grain bin, and the commission sees no reason to discredit that testimony.

In addition, Keuter testified that other truck drivers had gone inside bins to correct problems, transcript page 33, and that drivers would generally do whatever was necessary to help a farmer out, transcript, page 32. Moreover, the applicant testified that he was told to do whatever he could to help a farmer out as part of good customer relations. It may be that it was poor judgment for the applicant to try to unclog the bin without asking Keuter for help, but that does not make his action a deviation.

Finally, the commission took up the intoxication issue at the request of both parties, and on their representation the issue was fully tried. The commission acknowledges the wisdom in most cases of delaying the resolution of penalty issues until the compensation issues have been tried. However, given the posture of this case, the record from the hearing, and the fact that deciding the reduced compensation issue at this time will prevent the possibility of an overpayment of compensation, the commission granted the parties' request to resolve the Wis. Stat. 102.58 claim at this time.

cc:
ATTORNEY KURT VAN BUSKIRK
LAW OFFICE OF JEFFREY T OCONNOR

ATTORNEY CRAIG R DAY
HOSKINS KALNINS MCNAMARA VANDEHEY & DAY


Footnotes:

(1)( Back ) See Wis Stat. 885.235 (1)(c).


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