Bitterman v. Safe Way Bus Co., Inc.

Bitterman v. Safe Way Bus Co., Inc., No. WC13-5581 (W.C.C.A. Oct 31, 2013)

This interesting case demonstrates the lengths employers and insurers must go to establish a successful intoxication defense.

The facts are quite colorful. The employee was occupied doing maintenance work when he allegedly fell from a short ladder hitting his head and back. Without a telephone to call for help and in a daze, he attempted to drive to his daughter’s home, but ended up in the middle of her yard slumped over the steering wheel with the horn blaring.

When the employee arrived at the hospital his blood alcohol level was found to be 0.29, about three and a half times the legal limit to drive a motor vehicle. The employee was assessed with an industrial fall along with alcohol withdrawal and toxicity.

The employee testified at hearing that he drank 12 to 15 beers at a party the night before. However, he testified that he was not intoxicated that night. In fact, he would drink six to eight beers a day, on average, and that he would need to drink a case of beer to become intoxicated.

The employer and insurer called a forensic toxicologist who offered the opinion that the employee was intoxicated. A supervisor did concede that the employee did not show signs of intoxication the day of the accident, nor on any work day.

Minn. Stat. § 176.021, sub. 1, provides that the employer is not liable for compensation if “intoxication of the employee is the proximate cause of the injury.” The compensation judge found that while the employee was intoxicated, this intoxication was not the proximate cause of the employee’s work injury. The judge may have been swayed by the absence of testimony regarding the outward signs of intoxication on the day of the accident. Employer and insurer appealed.

On appeal the W.C.C.A. affirmed the compensation judge citing the high legal standard of proximate cause. Even in the face of uncontroverted expert testimony, it is up to judges’ discretion whether intoxication is the proximate cause of a work accident.

Quick action is required when an employer or insurer suspects that alcohol may have contributed to a work accident. The employee’s blood alcohol level should be tested and co-worker and witness statements should be acquired detailing the outward signs of intoxication such as stumbling, stammering, and poor coordination. These are the facts that will help to prove that the accident would not have happened if the employee were sober.