United States Department of Labor
Office of Administrative Law Judges Law Library

[Remarks by District Chief Judge David W. Di Nardi at The Annual Longshore Conference , sponsored by Loyola University School of Law in cooperation with the United States Department of Labor, March 21-22, 1996, New Orleans, Louisiana]

INTOXICATION AS A DEFENSE
UNDER THE LONGSHORE ACT
FROM THE ADMINISTRATIVE
LAW JUDGE'S VIEWPOINT

PRESENTED BY
DAVID W. DI NARDI
DISTRICT CHIEF JUDGE
BOSTON DISTRICT OFFICE
OFFICE OF ADMINISTRATIVE LAW JUDGES
U.S. DEPARTMENT OF LABOR

MARCH 22, 1996
OVERVIEW AND INDEX

A. INTRODUCTION
1. Section 3(c) of the Longshore Act

B. DISCUSSION OF CASES
1. EARLIEST ALJ DECISION
  • Olson v. Duluth, Missabe and Iron Range Railway Company , 1 BRBS 13 (ALJ)(1975).
2. EARLIEST BRB DECISION
  • Shelton v. Pacific Architects and Engineers , 1 BRBS 306 (1975)
3. COURT OF APPEALS AND SECTION 3(C)
  • Walker v. Universal Terminal & Stevedoring , 645 F.2d 170, 13 BRBS 257 (3rd Cir. 1981), rev g 7 BRBS 1019 (1978)
4. OTHER BOARD DECISIONS
5. OTHER ADMINISTRATIVE LAW JUDGE DECISIONS
6. SECTION 5(B) OF THE LONGSHORE ACT AS AFFECTED BY SECTION 3(c)
  • Keller v. United States of America , 38 F.3d 16 (1st Cir. 1994)

C. REPRESENTATIVE STATE CASES

D. VOLUNTARY INTOXICATION AND INTENT TO HARM ONESELF

E. CONCLUSION
A. INTRODUCTION

1. One of the more interesting defenses available to employers and insurance companies under the Longshore Act is Section 3(c) which provides as follows:

  • No compensation shall be payable if the injury was occasioned solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another.

  • (Emphasis added)

Those thirty-two words are very specific, easily read and should not present any controversy. However, a survey of the action of ALJs, as reviewed by the Benefits Review Board and the appellate courts, presents an interesting history for those faced with a longshore claim involving Section 3(c).

(a) WHAT IS INTOXICATION?

As the word is not defined in the Longshore Act, the initial inquiry in this paper is what constitutes intoxication? Do we look to state driving laws and regulations dealing with driving while intoxicated or driving under the influence? Should we look at state laws or local ordinances pertaining to public intoxication? As Section 3(c) provides that compensation can be denied on the ground that the injury was occasioned solely by intoxication, the definition of intoxication becomes very important. Is the test an objective one? Or is it a subjective test based on the perceptions of eyewitnesses. If objective, is, for instance, a violation of the state blood-alcohol level for driving a motor vehicle, a per se violation of Section 3(c). If subjective, do we require that the eye witnesses testify as to the various levels of drunkenness, such as the merry, the affectionate, the pugnacious, the suspicious, the lachrymose, the somnolent and, finally, the out-cold state?

It is obvious from the brief survey of cases in this paper that proof of intoxication does not follow from evidence that the claimant had had a few drinks American Cas. Co. v. Jones, 224 Ark. 731, 276 S.W.2d 41 (1955) (death of a salesman from a collision with a parked bulldozer not occasioned solely by intoxication although he had consumed five cans of beer); that there was a smell of liquor on claimant's breath ( United States Fidelity & Guaranty Co. v. Davis , 99 Ga. App 45, 107 S.E.2d 571 (1959) In Davis , the court held that the circumstantial evidence of a half-bottle of whiskey at the scene of an injury, and testimony from a witness that the decedent "was not drunk" but had an odor of alcohol, did not constitute a finding of intoxication. Rather, the court found that earlier complaints by decedent of fatigue and illness could also support a finding that the accident had been caused by sickness and lack of sleep. To find that decedent was intoxicated, and further find that the accident was caused by this intoxication, would constitute pyramiding an inference on an inference. Therefore, death benefits were awarded. Id . A half-empty wine bottle was held insufficient evidence to establish intoxication, even coupled with the claimant's own statement that he had "had too much to drink". Van Note v. Combs , 24 N.J. Super. 529, 95 A.2d 12 (App. Div. 1953) (emphasis added); Finally, evidence that the claimant enjoyed a general reputation of being a heavy drinker also did not establish intoxication. Lefens v. Industrial Comm'n , 286 Ill. 32, 1231 N.E. 181 (1919); Mass. Bonding & Ins. Co. v. Industrial Comm'n and Tate , 8 Wis. 2d 606, 99 N.W.2d 809 (1959) In Mass. Bonding & Ins. v. Industrial Comm'n and Tate , there was no evidence establishing how a restaurant cook fell down stairs and injured himself. The head chef testified that he though the cook was intoxicated and that his speech was not like that of a sober person. Nevertheless, an award of benefits was affirmed as there was no competent proof that the injury resulted from intoxication. Id.

(b) DEFINITIONS

Note that the statute does not define "intoxication" and that Section 3(c) does not contain such modifying or descriptive terms as "excessive drinking" or simply the "use of alcohol. We should also keep in mind that while we each have our understanding of what the term means, the dictionary definition is drunkenness or one stupefied to such an extent as to be affected temporarily by diminished control over one's physical and mental powers as a result of ingesting alcoholic beverages, a drug or some other substance. Dorland's Illustrated Medical Dictionary , Twenty-sixth Edition, p. 674, gives as the first definition: poisoning, the state of being poisoned; and, the second definition is the condition produced by excessive use of alcohol, especially ethanol.

Does "intoxication" refer only to the use of alcohol or to narcotic drugs or other controlled substances? Black's Law Dictionary , Fourth Edition, limits intoxication to "alcoholic intoxication" with the added comment that this is its meaning as used in statutes, indictments, etc. However, in the Fifth Edition, Black now states, "Under most statutes dealing with driving while intoxicated, 'intoxication' includes such by alcohol or by drug or by both." Moreover, The Oxford Universal Dictionary , Third Edition, defines "intoxication" as "the action of stupefying with a drug or alcoholic liquor." And stupefy, in its ordinary meaning, involves dulling one's senses or facilities, or to be stunned.

Texas Labor Code §401.013(a)(2) defines intoxication as follows:

  • NOT HAVING THE NORMAL USE OF MENTAL OR PHYSICAL FACULTIES RESULTING FROM THE VOLUNTARY INTRODUCTION INTO THE BODY OF A DANGEROUS DRUG, AN ABUSABLE GLUE OR AEROSOL PAINT, OR ANY SIMILAR SUBSTANCE REGULATED UNDER STATE LAW

B. DISCUSSION OF CASES
1. EARLIEST ALJ DECISION

The earliest reported case by an administrative law judge was issued on January 29, 1975, shortly after the Office of Administrative Law Judges of the U.S. Department of Labor was established, and in that case Claimant's husband, a welder, was killed when he fell while attempting to cross between two iron ore cars of a moving train in violation of the employer's work rules. Evidence in the record shows that prior to the accident deceased had consumed six ounces of alcoholic beverage. Employer voluntarily paid compensation to the widow and surviving children from the time of the accident, but controverted the claim on the ground that deceased's death resulted solely from intoxication and thus was not compensable under the Longshore Act. The ALJ held that claimant and surviving children of the deceased employee were entitled to death benefits under Section 9 of the Act.

According to the judge, the Section 3(c) intoxication defense depends upon such factors as the type and amount of alcoholic beverage consumed, whether or not the person has eaten before or during the drinking, the size and weight of the drinker and his or her course of activity during the drinking. Intoxication exists when, due to overindulgence in alcohol, an employee's mental and/or physical faculties are impaired so as to interfere with the performance of his or her duties. Olson v. Duluth, Missabe and Iron Range Railway Company , 1 BRBS 13 (ALJ)(1975).

As can be seen, the judge added a number of factors not mentioned in the statute.

2. EARLIEST BRB DECISION

Not to be outdone, the Board, in its first reported decision, reviewed a decision involving a seriously injured claimant allegedly smelling of liquor who was found lying on the ground beneath his third floor motel room, the claimant apparently having fallen, jumped or been pushed from the window of his room. The relevant information provided directly by the claimant concerns his preparing for bed, taking a drink from a glass of whiskey and lying down in bed. He remembered nothing else until he found himself lying in the parking lot in a pool of his own blood. The investigating police officer, discounting the claimant's story that he had been attacked and robbed by two or three assailants, testified that the claimant smelled of liquor and appeared to be intoxicated when they questioned him in the parking lot.

The doctor who evaluated the claimant's injuries at the hospital testified that the claimant smelled of alcohol and acted for several hours in a manner consistent with acute intoxication. However, no objective test was conducted to determine how much alcohol the claimant had consumed. Finally, the doctor's notes in the hospital record indicate that the claimant told him he had consumed half a bottle of Chivas Regal.

From this evidence, the administrative law judge drew several inferences and advanced a hypothesis as to the sequence of events which produced the claimant's injuries. It was inferred that the claimant consumed half to three quarters of a bottle of Chivas Regal whiskey and became intoxicated; that he was not assaulted; that some time after becoming intoxicated, he opened the sliding window beside the bed to get some fresh air; that while standing on the bed beside the open window, the claimant lost his balance and fell out; and that this fall was caused solely by the claimant's intoxication. From these inferences, the judge then concluded that the claimant was not entitled to compensation because he was excluded from coverage by the then Section 3(b) of the Act, a provision which was recodified as Section 3(c) by the 1984 Amendments to the Act. Shelton v. Pacific Architects and Engineers , 1 BRBS 306 (1975).

Claimant appealed from the denial of benefits and the Board, in reversing the judge, found "it is undisputed that the accident which caused the claimant's injuries occurred in the course of his employment while traveling from South Vietnam to Pasco, Washington. The Act creates a presumption that an injury occurring in the course of employment comes within the provisions of the Act. 33 U.S.C. §920(a). Unless there is substantial evidence to the contrary, an injury occurring in the course of one's employment is presumed to have arisen from that employment. Travelers Insurance Co. v. Donovan , 221 F.2d 886 (D.C. Cir. 1955). The Act contains a further presumption, in the absence of substantial evidence to the contrary, that the injury was not occasioned solely by the intoxication of the injured employee. 33 U.S.C. §920(c). Only when the Section 20(d) presumption is overcome by substantial evidence does the Section 3(b) exclusion from coverage apply," according to the Board.

The Board, in interpreting the parameters of the Section 20(a), (c) presumptions and although acknowledging that "the Board is cognizant of the rule of judicial review which requires that inferences drawn by the trier of facts are to be accepted unless they are irrational or unsupported by substantial evidence on the record as a whole, O'Keeffe v. Smith Associates , 380 U.S. 364 (1965)," held that a "case cannot be established by piling one inference upon another inference, Standard Accident Insurance Co. v. Nichols , 146 F.2d 376 (5th Cir. 1944)," and even "direct testimony of a claimant's intoxication which leads the trier of facts to conclude that a claimant was intoxicated at the time of his accident, may not be so compelling as to require the trier of facts, as a matter of law, to find that an injury was caused solely by intoxication. C.F. Lytle Co. v. Whipple , 156 F.2d 155 (9th Cir. 1946)." Furthermore, "Reliance on hypothetical probabilities in rejecting a claim is contrary to the presumption of coverage contained in the Act. Steele v. Adler , 269 F.Supp. 376 (D.D.C. 1967)" and the "Act is to be construed with a view to its beneficent purposes" and all "doubts, including the factual, are to be resolved in favor of the injured employee. Wheatley v. Adler , 407 F.2d 307 (D.C. Cir. 1968)."

With reference to the particular facts of the case before it, in Shelton, supra , the Board pointed out that it is "not sufficient in a Section 20(c) case to weigh the evidence and draw a reasonable inference." Section 20(c), an important presumption, provides that

  • IN THE ABSENCE OF SUBSTANTIAL EVIDENCE TO THE CONTRARY, IT SHALL BE PRESUMED THAT THE INJURY WAS NOT OCCASIONED SOLELY BY THE INTOXICATION OF THE INJURED EMPLOYEE

What constitutes substantial evidence?

At this point it is worthwhile to keep in mind that evidence will be considered substantial "if it is the kind of evidence a reasonable mind might accept as adequate to support a conclusion." John W. cGrath Corp. v. Hughes, 264 F.2d 314, 316 (2d Cir.), cert denied. 360 U.S. 931, 79 S.Ct 1451, 3 L.Ed.2d 1545 (1959); see in re District of Columbia Workmens' Compensation Act , 554 F.2d 1075 (D.C.Cir.), cert denied , 429 U.S. 820, 97 S.Ct. 67.50 L.Ed.2d 81 (1976).

In Shelton , the Board, clearly substituting its opinion for that of the presiding judge who observed the demeanor of the employee as he testified at the hearing and while candidly admitting that "(a)lthough the inference of intoxication on the facts here was perfectly reasonable in a case such as this, where there is no direct proof of the claimant's actions which caused him to fall and sustain severe injuries, it is not proper to draw a series of interdependent inferences to reach a hypothesis of how this accident happened and then conclude that such circumstantial evidence is sufficient to overcome the presumption of Section 20(c)" as the employee "must be given the benefit of the presumption where substantial doubts as to what actually happened remain unresolved." The Board then remanded the claim to the judge "for evaluation of the claimant's continuing disability and entry of a compensation order consistent with (its) opinion." Shelton, supra , 1 BRBS 306, 309-12, 314-315 (1975)

3. COURT OF APPEALS REVIEW AND SECTION 3(C)

Very few decisions of the Board dealing with Section 3(c) make it to an appellate court but one which did is Walker v. Universal Terminal & Stevedoring Corp. , 7 BRBS 1019 (1978), wherein the Board reviewed a claim defended by the employer on the ground that the employee, a "hatch" man assisting in the unloading of a vessel became partially unconscious, solely as a result of his intoxication, and who died on the way to the hospital. There were no eyewitnesses to the actual incident and the administrative law judge, crediting the testimony of the employer's medical expert, concluded that the employee's death was caused solely by his intoxication. Thus, benefits were denied the surviving widow. The Board, in its analysis of the record, reversed the denial of benefits as the judge's decision was not supported by substantial evidence. The employer appealed from that decision and the U.S. Court of Appeals for the Third Circuit issued a noteworthy opinion on two most important aspects which over the years has continued to cause tension between the Office of Administrative Law Judges and the Benefits Review Board, namely the respective roles of the presiding administrative law judge and the Board in claims under the Longshore Act.

Initially, the Court noted that the judge makes findings of fact and determines the validity of the claim after weighing and evaluating the evidence. The Court then noted that, pursuant to Section 21(b)(3) of the Longshore Act, the Board "does not make any independent findings of fact" and that the "findings of fact in the decision under review by the Board shall be conclusive if supported by substantial evidence in the record considered as a whole. " (Emphasis added) The appellate court's function then is to review Board decisions "for errors of law, and to make certain that the Board adhered to its scope of review provision." In a most significant statement, the Court noted that it "does not determine if the Board's decision is supported by substantial evidence; we review the Board's determination of whether the ALJ's decision is supported by substantial evidence." (Emphasis added) Walker v. Universal Terminal & Stevedoring Corp. , 645 F.2d 170, 172, 13 BRBS 257 (3d Cir. 1981).

The Court, after pointing out that the "Benefits Review Board is not empowered to engage in a de novo proceeding or unrestricted review of a case brought before it," 20 C.F.R. §802.301 (1980), held that the presumptions of Section 20(a), (c), do "not have the quality of affirmative evidence," that the presiding judge had the discretion to accept and credit the testimony of the employer's medical experts as the presumptions had been rebutted by substantial evidence, that the ALJ was amply supported by substantial evidence in the record as a whole for his conclusion that intoxication was the sole cause of the employee's death and "that the Benefits Review Board exceeded its scope of review." The Third Circuit Court, thus, reversed the Board's decision "with directions to reinstate the original decision of the administrative law judge denying the claim of Methel Walker for death benefits." Walker, supra , 645 F.2d at 172 fn 2, 173, 176-177, 13 BRBS at 261 fn 2, 262, 267-268

(d) OTHER BOARD DECISIONS

(a) In Colliton v. Defoe Shipbuilding Company , 3 BRBS 331 (1976), the ALJ rejected the employer's position that the employee's death was occasioned solely by his intoxication based, partly, on "an unsworn statement by the sole eye witness to the accident." The Board , after paying its usual homage to the judge by citing O'Keefe v. Smith Associates , 380 U.S. 359 (1965)("the Board must accept the inferences of the presiding judge if they are not irrational or unsupported by substantial evidence in the record as a whole"), John W. McGrath Corp. v. Hughes , 289 F.2d 403 (2d Cir. 1961)("the Board must respect the fact-finder's evaluation of the credibility of witnesses"), Banks v. Chicago Grain Trimmers Ass'n, 390 U.S. 4590 (1968)("it is solely within the province of the administrative law judge to accept or reject all or any part of any testimony"), South Chicago Coal and Dock Co. v. Bassett , 104 F.2d 522 (7th Cir. 1939), aff'd , 309 U.S. 251 (1940)("in reviewing findings of the trier of fact, the reviewing body may not reweigh evidence, but may only inquire into the existence of evidence to support the findings") and Young & Co. v. Shea , 397 F.2d 185 (5th Cir. 1968), reh. denied , 404 F.2d 1059 (5th Cir. 1968), cert. denied , 395 U.S. 920 (1969) ("the reviewing body must consider the policy of the Act that all doubtful questions are to be resolved in favor of the claimant, in determining whether there was substantial evidence before the fact-finder"), then affirmed the ALJ's decision awarding benefits to the employee's widow .

The Board noted that the ALJ found that the employee "was moderately intoxicated," that the sole eye witness to the accident when the employee fell from a ladder into the water and drowned "told the Coast Guard that 'everything appeared to be normal' about Colliton's manner as he approached the ship," that "the medical evidence pointed to the possibility that Colliton suffered a heart attack immediately before he fell from the ship's ladder" and that the unsworn statement given to the Coast Guard was properly admitted into evidence as the ALJ is not "bound by common law or statutory rules of evidence or by technical or formal rules of procedure," 20 C.F.R. §702.339, and as "under the Administrative Procedure Act, evidence is not, because of its nature as hearsay, automatically inadmissible in hearings before administrative agencies subject to the Act. 5 U.S.C. §556(d)." Colliton, supra at 332-335.

(b) In O'Connor v. Triple A Machine Shop , 13 BRBS 473 (1981), the Board affirmed the ALJ's denial of benefits as the employee's injury was barred under the then Section 3(b) since his injury was occasioned by his willful intention to harm another person. The ALJ had rejected the employee's argument that any intoxication was brought about by the employer's condoning of alcohol. In O'Connor , although the ALJ "concluded that claimant's injury was not occasioned solely by his intoxication," as "no evidence persuasively established that the cause of claimant's attack on s. Yabarra was intoxication rather than the particular circumstances or a general propensity," there was some evidence that "claimant was violent after drinking on two prior occasions" and the judge "found that claimant was in sufficient control of his faculties to form an intention to injure another person independent of any alcoholic influence." I note that the ALJ had "also found, in the alternative, that employer was barred from asserting the defense of intoxication because, by furnishing at least one intoxicating drink on the job, and by failing to discourage the consumption of others, employer, in effect, condoned the use of alcohol." O'Connor, supra at 477-479.

(c) In Birdwell v. Western Tug & Barge , 16 BRBS 321 (1984), the Board affirmed the award of benefits and the ALJ, concluding that the then Section 3(b) did not bar recovery, accepted the autopsy pathologist's opinion that intoxication may have been a factor in the employee's death but it was not the principal, let alone sole, cause of death . In this case, the Board held that Section 3(b) must be read in conjunction with Section 20(c), which provides that, in the absence of substantial evidence to the contrary, it shall be presumed that the injury was not occasioned solely by the intoxication of the injured employee. The Employer's medical expert testified that intoxication was the primary cause of death but the ALJ concluded, and the Board affirmed, that such opinion did not establish intoxication as the sole cause of death, the judge noting "further that walking on a mooring line to a floating vessel, which is risky in any condition, might have caused decedent to fall and that the bruises on decedent's forehead and chest, which were listed in the autopsy report, suggest a reason other than drunkenness for the decedent's failure to swim ashore." Birdwell, supra at 323-324.

(4) There is a very interesting set of facts involving both the so-called "coming and going rule and the intoxication clause under discussion in this presentation. In Oliver v. Murry's Steaks, 21 BRBS 348 (1988), the Board's summary of the facts is as follows:

"Claimant worked as a refrigeration mechanic, repairing and maintaining equipment at employer's main plant and other locations. Employer provided claimant with a van in which claimant carried his tools and other work-related equipment. Claimant was on call twenty-four hours a day, and no restrictions were placed on his use of the van. At 9:15 p.m. on August 25, 1980, the van, driven by claimant, collided with a tractor-trailer at a location close to the main plant. It is not disputed that claimant was drinking beer at a bar close to the plant at about 6:00 p.m., and blood alcohol tests indicated that claimant was intoxicated at the time of the accident. The parties presented conflicting evidence regarding claimant's whereabouts immediately before the accident. Claimant asserted that he left the bar and returned to the plant shortly after 6:00 p.m. to perform further work. Employer asserted that claimant never returned to work after arriving at the bar.

"In a Decision and Order dated May 17, 1982, the administrative law judge determined that even if claimant had returned to work after leaving the bar, his arrangement with employer regarding the van did not satisfy the 'trip payment' exception to the 'coming and going' rule. The administrative law judge therefore determined that the accident did not occur in the course of claimant's employment and that he was not entitled to compensation. Claimant appealed, and in a Decision and Order dated March 5, 1985, the Board held as a matter of law that the trip payment exception applied to the van arrangement between claimant and employer. Oliver v. Murry's Steaks , 17 BRBS 105, 107 (1985). The Board concluded that the real issue in the case was whether claimant was in fact leaving work at the time of the accident, or whether in light of the blood alcohol test results and other evidence, he had abandoned his employment-related duties and status and embarked on a personal mission of his own. Id. at 108. The Board stated that if claimant had embarked on a mission of his own, no compensation would be payable. Id. The Board therefore remanded the case for the administrative law judge to make a finding as to whether claimant was leaving work at the time of the accident and, if he found that the injury occurred in the course of claimant's employment, to consider the applicability of Section 3(b) of the Act, 33 U.S.C. §903(b) (1982). (footnote omitted).

"On remand, the administrative law judge determined that the evidence established that claimant had not returned to work after leaving the bar. Consequently, the administrative law judge concluded that claimant's injury did not arise in the course of his employment. The administrative law judge also found that even if claimant were leaving work at the time of the accident, his speeding while driving intoxicated was the cause of the accident. The administrative law judge thus determined that compensation would be barred by Section 3(b). On appeal, claimant argued that the administrative law judge's findings were not supported by substantial evidence and are contrary to law." Oliver , 17 BRBS 259 (ALJ)(1985) The record reflects that claimant's blood serum alcohol level was .195% grams per decaliter concentration, a level which under the State of Maryland laws indicated intoxication. Oliver, supra at 262 (ALJ)

The Board affirmed the ALJ's conclusion that the injury did not arise in the course of the employee's employment as he had severed the employment nexus by embarking on a personal mission. As the employee had not established a work- related injury, the Board declined to address the Section 3(c) issue. Oliver, supra, 21 BRBS at 349-350.

(e) In Sheridon v. Petro-Drive , Incorporated , 18 BRBS 57 (1986), the Board reversed the denial of benefits, pursuant to Section 3(c), holding, "In light of the express statutory requirement that the injury must be 'solely' due to intoxication and the presumption against such (in Section 20(c)), it is clear that employer has the heavy burden of virtually ruling out all other possible causes of injury before the intoxication defense is proven. As stated in reference to the similar intoxication defense statute in the New York Workers' Compensation Act, intoxication will defeat a claim only when all the evidence and reasonable inferences flowing therefrom allow no other rational conclusion than that the intoxication was the sole cause." Milz v. J&R Amusement Corporation , 96 A.D. 2d 607, 464 N.Y.S. 2d 605, 606 (1983).

According to the Board, "the contours of this burden have been outlined by the New York Court of Appeals as follows: If the employer seeks to establish that intoxication was the sole cause of the accident, the burden is upon him to offer substantial evidence from which reasonable persons would reasonably draw the inference (a) that the employee was drunk at the time of the accident; (b) that he fell owing to his drunkenness and was injured. . .

Shearer v. Niagara Falls Power Company , 242 N.Y. 70, 73, 150 N.E. 604, 605 (1982). The presumption falls out of the case when the employer proffers substantial rebuttal evidence and, at that point, Section 3(c) may apply to bar recovery if the ALJ, based on the record as a whole, finds that the intoxication defense is proven. Sheridon, supra at 59.

In Sheridon , what is noteworthy is that the ALJ determined that evidence of claimant's intoxication at the time of his injury was "sufficient to rebut the statutory presumption" and the judge concluded that, because the precise events of the injury are unknown, there was no substantial evidence of any other factor that contributed to claimant's fall, and claimant's injury was therefore occasioned solely by intoxication.

However, the Board reversed the judge with these words: "We hold that this analysis is incorrect because it rests on a misapplication of the statutory presumption. The administrative law judge erred in relying only on the fact that claimant was intoxicated to rebut the presumption. Proof of an employee's intoxication is, alone, insufficient to rebut the Section 20(c) presumption, even if drunkenness is the primary cause of the injury. See Birdwell , 16 BRBS at 323; Loucks v. Joy Automatics , 54 A.D. 2d 1037, 388 N.Y.S. 378 (1976). The employer must additionally proffer evidence that claimant fell owing to his intoxication, and must rule out all other causes. Although the employer need not negate every hypothetical cause, see Majune v. Good Humor Corp., 25 A.D. 2d 849, 273 N.Y.S. 2d 819, 820-1 (1966), it must present evidence that permits no other rational conclusion but that claimant's intoxication was the sole cause of injury. Further, the administrative law judge must give claimant the benefit of the presumption, where, as here, there are substantial doubts as to what actually happened and no direct proof of claimant's actions which caused him to fall. Shelton v. Pacific Architects and Engineers, Inc. , 1 BRBS 306, 314 (1975). We note, in this regard, that claimant did not remember the circumstances of the accident. Also, an employer's witness saw claimant fall, but did not offer consistent testimony on whether the board on which claimant had been standing was covered by the same oil and hydraulic fluid that contaminated the rest of the work area."

According to the Board, "In light of the administrative law judge's finding that the precise sequence of events causing the injury are not known, and because he failed to properly apply Section 20(c) and did not rule out other possible causes of injury, we are unable to conclude that substantial evidence supports the administrative law judge's finding that the claimant's intoxication was the sole cause of his accident. We note that the employee's working conditions could suggest a reason other than the claimant's intoxication for the fall. Claimant was perched on a narrow board that rested on two beams. There is evidence that the hydraulic hammer operated by claimant leaked and sprayed oil over the general area where claimant worked. Claimant had been offshore for over twenty days, and was beginning a second shift on the day he was injured. The opening through which he fell was not protected by a safety net. See Birdwell , 16 BRBS at 324.

"Accordingly, we vacate the administrative law judge's finding that claimant's intoxication was the sole cause of his accident, and remand this case for a proper application of the presumption contained in Section 20(c). On remand, the administrative law judge should also consider the issue of jurisdiction under Section 2(3) and 3(a), 33 U.S.C. §§902.(3); 903(a), in light of the Supreme Court's recent decision in Herb's Welding, Inc. v. Gray , 470 U.S. 105 S.Ct. 1421 (1985)." Sheridon, supra at 60-61. This case is also noteworthy for the further fact that the Board, sua sponte , raised the issue of subject matter jurisdiction during the appeal, an issue to which the parties had stipulated and which stipulation had been accepted by the judge.

5. OTHER ADMINISTRATIVE LAW JUDGE DECISIONS

(a) In Fortran v. Triple A Machine Shop, 15 BRBS 404 (ALJ) (1983), the Administrative Law Judge held that the employee's work-related injury was not "convincingly" shown by the evidence to be solely caused by the employee's intoxication. The employee had been injured when a loaded pallet fell from a crane as it was being hoisted and struck him in the face and right hip. There was some evidence that the employee had alcohol on his breath at the time of the accident and an assistant foreman found a partly consumed bottle of whiskey in the electrician's storage box adjacent to the area where the employee worked, the judge pointing out that many other workers had access to that box and it was never established that the bottle belonged to the employee. Accordingly, the judge, citing the then Section 3(b), held that the "evidence does not convincingly show that the accident was solely occasioned by the employee's intoxication," concluding, "The presumption is that it was not." Fortman, supra at 405-406.

(2) In Bastendorf v. Jones Oregon Stevedoring Co., 19 BRBS 618 (ALJ)(1987) the ALJ held, as a matter of law, that the employer did not present substantial evidence to support a finding that claimant's intoxication was the sole cause of his injury and, as the employer did not sustain its burden of proof, the claim was found to be compensable. In this case, there was evidence that the "walking boss" had talked to the employee prior to the injury and had asked the employee to leave the ship as he "acted like he might have been under the influence." However, the supervisor had not seen the employee take a drink and, in fact, he had seen the employee leave the area unassisted, walk down the deckload of logs to the ladder, climb onto the ladder and he was able to descent the ladder safely. Another "walking boss" gave similar testimony. However, according to the judge, "There is no evidence that either Harvey or Karavanich took any further action with regard to the claimant's condition, either by way of assistance or discipline." The claimant testified that he had two drinks at the morning coffee break, had two beers at lunch, as well as another drink in the interim before lunch. The accident happened about 3:30 p.m., and claimant went home to rest. However, to relieve his pain, he had several additional drinks and at the time of his 7:00 p.m. examination in the Emergency Room, his alcohol blood level was 0.35, indicating "acute alcoholic ingestion," according to the physician. Bastendorf, supra at 621-622 (ALJ)

According to the ALJ, "In light of the statutory requirement that the injury must be "solely" due to intoxication and the presumption against such a finding, it is clear that Jones Oregon had the heavy burden of virtually ruling out all other possible causes of injury before it would carry the burden of its intoxication defense on this claim. Proof of an employee's intoxication is, alone, insufficient to rebut the presumption of Section 20(c), even if drunkenness is the primary cause of the injury. See Birdwell v. Western Tug and Barge, 16 BRBS 323 (1984); Loucks v. Joy Automatics, 54 A.D.2d 1037, 388 NYS 378 (1976)." The judge then concluded that "although claimant was drinking during his work shift with Jones Oregon, at the time of his fall, he was not so inebriated that his fall was caused solely by intoxication. It is immaterial as to what the claimant had to drink by way of intoxicants after his injury. Both Bastendorf's testimony, and that of his neighbor Orville Warrick, was that his drinking after his injury was considerable. This drinking or what his blood level of alcohol tested to be hours after his injury is not controlling," the judge concluding that claimant's fall and resulting injuries were not solely caused by intoxication.

According to the judge, "Jones Oregon has not met its burden of showing that claimant fell solely due to his intoxication and did not rule out all other causes, which is its heavy burden of proof. In order to prevail in its defense, Jones Oregon had to present evidence that permits no other rational conclusion but that claimant's intoxication was the sole cause of the injury, which it has not done. Although it was argued by employer that claimant did not remember the exact circumstances of the accident, there was an eye witness to claimant's fall, and his testimony was unchallenged by Jones Oregon. As a matter of law, Jones Oregon presented no substantial evidence which would support any finding. . . that claimant's intoxication was the sole cause of his injury and, therefore, it has failed in its burden of proof." Thus, this claim was found to be compensable. Sheridon v. Petro-Drive, Inc., 18 BRBS 57 (1986)." Bastendorf, supra at 625 (ALJ). (Emphasis added)

(c) In Milosevich v. Metropolitan Stevedore Co., 21 BRBS 114 (ALJ) (1988), the ALJ found that the claim was not barred by Section 3(c) because although the alcohol in the employee's system produced some impairment at the time of the accident, it was not the sole cause of it, as the uncontroverted evidence clearly established that slippery conditions was another, if not the primary, cause of the injury. According to the ALJ, the salient evidence in this case supporting a finding regarding "intoxication," which is not defined in the Act, is claimant's testimony that he consumed two 12-oz. beers at "lunch" between 10:00 and 11:00 p.m.; that he also had had two mixed drinks of bourbon and coke at home at about 3:30 p.m. before reporting to work at 6:00 p.m.; the evidence that the paramedic and hospital admission report noted the smell of alcohol on claimant's breath; and that in the opinion of Martin Breen, a forensic alcohol analysis and interpretation expert, claimant's blood alcohol level at the time of injury must have been sufficient to cause "mental and physical impairment [affecting his coordination, visual acuity and judgment of risks] to a significant measurable degree."

On the other hand, the record also contains the testimony of co-worker David DeVries to the effect that he preceded claimant into the hold and almost fell himself due to the slippery conditions there and that he observed no signs that claimant was intoxicated either before or immediately after his fall; the testimony of Patrick Andrich, stevedore superintendent at the time, who took photos of the accident immediately after it happened "to illustrate how this surface can be slippery," and the acknowledgment by employer's expert witness Breen that such impairments as he felt claimant had were not sufficient to be the only cause of the accident."

According to the judge, " the totality of the record on this question only supports a finding that the alcohol in claimant's system produced some impairment(s) as of 11:00 p.m. on August 30, 1985, but even Breen's testimony, taken as a whole, does not constitute substantial evidence to rebut the section 20(c) presumption. As indicated, Breen clearly acknowledged alcohol was not the sole cause of the accident. Moreover, assuming for the sake of argument, that the presumption were rebutted, (the judge further found) that alcohol was not the sole cause of claimant's accident, because the uncontroverted evidence regarding the slippery conditions establishes that that was another, it not the primary, cause of the injury." Accordingly, the claim was held to be not barred by Section 3(c) of the Act. Milosevich, supra at 117 (ALJ).

(e) In Brown v. Old Dominion Stevedoring Corp ., 26 BRBS 198(ALJ) (1992), the ALJ held as follows: "There was no evidence submitted that the claimant was intoxicated at the time he sustained the fall. There was no evidence submitted that the claimant did not have sufficient control of his faculties on the date in question nor any direct proof that there was something about the claimant's actions that caused him to fall. On the other hand, the claimant himself testified that he was not intoxicated on the date in question. Although Dr. van Slyke recorded that the claimant had a history of alcohol abuse and opined that the claimant's "seizures are secondary to alcohol abuse", I can not pile inference upon inference to come to the conclusion that the claimant was intoxicated on the date in question. Furthermore, the presumption can only be overcome by substantial evidence that the Claimant was intoxicated at the time of his injury and that his injury was caused solely by his intoxication. See Shelton v. Pacific Architects & Engineers, Inc. , 1 BRBS 306 (1975) citing Maryland Casualty Co. v. Cardillo , 107 F.2d 959 (D.C. Cir. 1939). I cannot expand upon the meaning of the word intoxication to include seizures resulting from a history of alcohol abuse. As a result, I find that the Employer's argument has failed. As the Employer has not advanced another argument to burst the Section 20(a) presumption, I find that the Claimant's fall from the tow motor was a work-related injury." (Emphasis added)

Brown, supra at 205 (ALJ).

(e) In Bournes v. United States Maritime Services , 28 BRBS 350 (ALJ) (1994), my colleague here at the etairie District Office, held that the claimant had suffered a work-related injury for which he established a compensable claim under Section 20(c) of the Act, that the Employer had not sufficiently rebutted the Section 20(c) presumption to disallow the claim under Section 3(c) because the evidence was insufficient to establish that claimant was intoxicated on the job on the date of his injury, much less that intoxication was the sole cause of his injury that day. According to the judge, the "employer's own witnesses do not support the position that claimant was intoxicated on the job" on the date of his injury. While the Employer did present "evidence that Claimant tested positive for cocaine metabolytes" on the day after his injury, the "claimant's urinalysis drug screen was inconclusive on the issue of intoxication. (citations to the record omitted) Other than the inconclusive drug screen, employer has offered no medical evidence to support an inference that Claimant was intoxicated on the previous day at work." Bournes, supra at 359 (ALJ).

6. SECTION 5(B) OF THE LONGSHORE ACT AS AFFECTED BY SECTION 3(C)

A longshore worker who was injured when he fell from a ladder sued the vessel owner, pursuant to Section 5(b) of the Act, for negligently installing an unsafe ladder and for failing to warn the worker of the potential danger. A Federal District Court Judge awarded judgment to the vessel owner and the Court of Appeals for the First Circuit affirmed in Keller v. United States of America , 38 F.3d 16 (1st Cir. 1994).

The First Circuit Court, in affirming the lower court, held that the District Court Senior Judge properly considered the worker's blood-alcohol level at the time of the accident because evidence of high blood-alcohol level could not be divorced from the threshold question whether defective design rendered the ladder from which the longshore worker fell unreasonably dangerous.

The Court, in discussing the intoxication defense under the Longshore Act, pointed out that a stevedoring company may defend by proving by substantial evidence that the worker's injuries were caused "solely" by his intoxication as the worker enjoys a rebuttable presumption against such a finding, pursuant to Section 20(c). Similarly, in a Section 905(b) negligence action, the trial court may assess the quality of the vessel owner's rebuttal evidence (1) where the longshore worker failed to demonstrate a vessel defect and (2) where the vessel owner has proferred "substantial" evidence of the longshore worker's intoxication. The evidence in the case reflected a written policy by the company that workers cannot report to work while intoxicated and, thus, the worker's blood-alcohol level is relevant to whether the ladder constituted an "unreasonably" dangerous condition since the vessel owner reasonably could rely on compliance with the company's policy on intoxication. Keller, supra at 30.

C. REPRESENTATIVE STATE CASES

BURDEN OF PROOF

Nebraska provides the statutory defense in those claims where the employee was injured "by reason of being in a state of intoxication." Benefits were awarded to a truck driver who was injured when his truck swerved off the road. In Nalley v. Consolidated Freightways , 282 N.W. 2d 47 (Neb. 1979), the Court affirmed the award of benefits because although the accident could have been caused by the employee's intoxication, the burden of proof was on the employer, and the employer has failed to prove this causation. According to the Court, the accident just as probably occurred because the employee fell asleep or because the truck was not functioning properly. The record reflects that the claimant's blood alcohol content level was .142%.

In most jurisdictions, evidence of blood or brain alcohol content is admissible and is the most objective evidence possible on the issue of intoxication. See e.g., J.H. Rose Trucking Co. v. Bell , 426 P.2d 709 (Okla. 1967) (removal of a blood sample from the body without authorization does not violate the state constitutional provisions against self incrimination). But cf. R.W. Rine Drilling Co. v. Ferguson , 496 P.2d 1169 (Okla. 1972)(Results of a blood test taken to determine intoxication pursuant to a statute governing motor vehicle operation were held inadmissible in a workers' compensation case, since the statute specifically provided that the results of such a test could not be used as evidence in a civil action). In Smith v. State Roads Commission , 240 Md. 525, 214 A.2d 792 (1965), the Maryland Court of Appeals held that the presence of 0.27 percent alcohol in the blood, shown by autopsy, was proof of intoxication, since in aryland drunken driving prosecutions 0.15 percent is prima facie evidence that the defendant was under the influence of intoxicating liquor. In Smith , the doctor testified that a 0.27 percent blood-alcohol level indicated that the person was "highly intoxicated" and that many people "pass out" at that level, a level amounting to a pint of one hundred proof whiskey.

An interesting case is Coonce v. Farmers Insurance Exchange , 228 S.W.2d 825, 828 (Mo. App. 1950), wherein compensation benefits were awarded in spite of evidence of considerable drinking and of "weaving on the highway" prior to the accident, the court holding:

  • We cannot deny compensation because of intoxication, at least unless it was shown that the degree of intoxication was such that it could be held that the injury did not arise out of the employment because the employee could not have been engaged in it. Employers will have to enforce their rules against drinking by discharging offending employees or by such other disciplinary measures as they see fit to adopt.

However, by way of caution, I would like to direct your attention to the facts of a particular case involving a work-related back injury, drinking on the job and subsequent termination. In Scroggins v. Corning Glass Co. , 283 Mich. 628, 172 MN.W. 2d 367 (1969), the claimant suffered a compensable back injury and, after surgery, returned to work for the same employer. He was later discharged for working while drunk, but claimed that his drinking was the only way he could alleviate the pain resulting from the original injury. An award of benefits resulting from the claimant's firing was affirmed as his intoxication was held not to constitute willful misconduct.

Those of you practicing as defense counsel in the state of Texas seem to have the easiest burden because Rev. Civ. Stat., Art. 8309, §1(1959), requires only a showing that the claimant was intoxicated at the time of the injury, and the courts have held that any discussion of causal connection between the intoxication and the accident is irrelevant. Thus, in Texas Indemnity Insurance Co. v. Dill , 42 S.W.2d 1059 (Tex. Civ. App. 1931), 63 S.W. 2d 1016 (1933), a jury had made two findings; first, that the Decedent was intoxicated and, second, that the intoxication did not contribute to the injury. The Appellate Court struck out the second finding as immaterial and reversed the compensation award.

Louisiana states a simple causal relation test by denying compensation benefits for injuries caused by an employee's intoxication. Thus, in Smith v. Datachem , 540 So. 2d 1282 (La. Ct. App. 1989), the Court, concluding that benefits were properly denied as the injury was caused by the worker's intoxication , held that the statute did not unconstitutionally discriminate against alcoholics. Accord Gore v. City of Pineville , 598 So. 2d 1122 (Ct. App. 1992), writ denied , 600 So. 2d 681 (La. 1992)(benefits were denied as the claimant was intoxicated at the time of the accident and the intoxication proximately caused his injuries).

An interesting recent case here in Louisiana involved a worker who was injured when he fell from a ladder and benefits were denied as the workers' compensation commission concluded that the accident was caused by his intoxication. This denial was affirmed on appeal because the worker failed to overcome the presumption under LA. RS §23.1081 that his intoxication caused his fall. According to the Court,

  • FOR PURPOSES OF THE STATUTE, AN EMPLOYER NO LONGER BEARS THE BURDEN OF PROVING THE ACCIDENT WAS CAUSED BY THE EMPLOYEE'S INTOXICATION. NOW, THE EMPLOYEE MUST REBUT THE PRESUMPTION BY SHOWING HIS INTOXICATION DID NOT CONTRIBUTE TO THE CAUSE OF THE ACCIDENT.

Meliet v. Brown & Root Industrial Services , 652 So.2d 105 (La, App. Fifth Cir. 1995), cert. denied , 654 So. 2d 328 (1995)

However, it has been held that an injury is not "caused by" intoxication when an intoxicated claimant's verbal abuse led a co-worker to assault him, the court holding that "caused" in the statute meant proximately caused by the intoxication, as when a worker attempts to operate machinery when drunk. Conley v. Travelers Insurance Co ., 53 So. 2d 681 (La. App. 1951).

As can readily be seen, the intoxication defense presents a heavy burden on the employer and this difficulty is best summed up by the case of Kulinka v. Flockhart Foundry Co. , 9 N.J. Super. 495, 75 A.2d 557 (L. Div. 1956), involving a fall by an employee injured attempting to enter a crane. The court awarded benefits based on its reading of the statute requiring "sole" causation on the force of the word "the." The court explained: Has the employer shown by the preponderance of all of the evidence in the record that Kulinka's intoxication was "the natural and proximate cause" of his injury?

"The article "the" in this statutory context is a word of exclusion. It means that in order to defeat recovery the employer must show by the greater weight of the evidence that the employee's injury was produced solely by his intoxication. In other words, the employment must supply no more than the setting, the stage, the situation in which the fall occurred; it can be no more than an inactive condition as distinguished from a moving cause If the hazards or risks which are incidental to the employment concur with the employee's insobriety in producing the fall or if the hazards of risks contribute efficiently to the production of the fall, compensation cannot be denied. If the legislature intended intoxication as a concurrent or contributory cause of an injury to effect a deprivation of the benefits of the statute, it would have been a simple matter to have said so."

Id. at 505, 75 A.2d at 562 (emphasis in original).

Likewise, in New York, the lack of success in invoking the intoxication defense is illustrated by the following cases. In Cliff v. Dover Motors, Inc. , 11 App. Div. 2d 883, 202 N.Y. 2d 914 (3d Dep't 1960), aff'd, 9 N.Y. 2d 891, 175 N.E. 2d 831, 216 N.Y.S. 2d 703 (1961), an autopsy disclosed 0.291% alcoholic content in the brain of the deceased salesman. The court confirmed the findings of the board that intoxication was not the sole cause of the accident.

In Cliff, the New York Court of Appeals affirmed the award of benefits with these words: the evidence, including evidence relating to an autopsy disclosing alcohol in salesman's brain in an amount sufficient to indicate intoxication and to salesman's activities in behalf of the employer, warranted the finding that the unwitnessed accident arose out of employment and was not caused by personal activities constituting a deviation therefrom and was not occasioned solely by intoxication. " The board rejected the employer's defense that since decedent gave no evidence of intoxication during his telephone conversation with his employer, he must have consumed a considerable number of drinks in a short period of time thereafter and that such an indulgence in personal activities constituted a deviation from employment. The Appellate Division then noted that the compensation board was not bound to accept the inferences which the employer would draw and "there seems to us substantial evidence supportive of its determination on the issue of employment. Neither may we, upon this record, disturb the finding that the unwitnessed accident was not occasioned solely by intoxication." An alcohol blood level of 0.291%, according to the employer's medical expert, constituted "acute alcoholism" and would have required 8-12 ounces of alcohol to reach that level.

In Malloy v. Cauldwell Wingate Co. , 284 App. Div. 798, 135 N.Y.S. 2d 445 (3d Dep't 1954), aff'd , 308 N.Y. 1031, 127 N.E. 2d 867 (1955), compensation was awarded for the death of an intoxicated night watchman, whose normal post of duties was outside of the building, even though his body was found inside the building and death occurred after his hours of duty.

In Malloy, the Workers' Compensation Board held that the employee's death was due to an industrial accident and was not due solely to intoxication. The Appellate Division affirmed the award of benefits because the "evidence, together with statutory presumptions, was sufficient to support the board's finding that death of a night watchman, who was found on employer's premises on a floor lower than the one on which he regularly worked and whose death was caused by a fracture of the skull, arose out of and occurred in the course of employment in the absence of any indication as to how he was injured or exact proof as to time of injury." Moreover, in view of the traumatic nature of the injury which caused the death, the board could have given due weight to the additional presumption that intoxication was not the sole cause of the injury." (Emphasis added)

The dissenting judge pointed out that "at the time he was injured, the decedent was not engaged in any service for the employer. His work hours had ended; he had not been ordered or authorized to work overtime; he was not at his regular work place; he had been seen prior to the accident in a position which negatived any inference that he might still be at work. Thus, the Section 21 presumptions are not applicable herein."

In Brame v. Alcar Trucking Co. , 31 App. Div. 2d 881, 297 N.Y.S. 2d 378 (3d Dep: 1969), the decedent's truck broke down, and while crossing an expressway to reach a second truck which had been sent to pick him up he was struck and killed. An autopsy revealed a 0.31% blood alcohol concentration, a level which would have seriously impaired motor function judgment and visual perception. However, as the testimony of witnesses who had observed the decedent immediately prior to his death was not produced, a finding that death was not due solely to intoxication was held supported by the evidence, and an award of death benefits was affirmed.

Similarly, a window washer who fell after having been drinking was entitled to benefits as his injury was not sustained solely because of his drinking but because of the dangerous character of his work. Department of Taxation & Finance v. De Parma , 254 App. Div. 615, 3 N.Y.S. 2d 120 (3d Dept. 1938).

In McCue v. Studebaker Automotive Sales , 389 S.W. 2d 408 (Mo. 1965), the decedent, an automobile salesman, was killed while on his way to meet a prospective customer. Although he had been drinking and had a blood alcohol level of .175%, an award of compensation benefits was affirmed as the commission ruled that he still had been performing his duties, even after drinking, the commission rejecting the defense that the decedent did not die in the course of his employment because of his drinking.

O'Neal v. Home Insurance Co. , 404 So. 2d 1355, 1357 (La. App. Second Cir. 1981), writ denied , 409 So. 2d 655 (1982), is noteworthy for this holding: Although the evidence supported a finding that the workers' compensation claimant was intoxicated at the time of the accident wherein he slipped and injured himself, the employer failed to bear its burden of proving that the accident and resulting injuries were caused by claimant's intoxication and, thus, claimant was entitled to benefits, as a slip and fall accident was not of a type such that the accident itself would infer intoxication as its cause. According to the court, this slip and fall accident was of a commonplace nature- -slipping or losing one's balance while going down wet stairs- - is an accident which occurs with some frequency to even the most sober, careful persons.

However, an alcohol blood content level of 0.25 percent at the time of the employee's automobile accident was sufficient to prove intoxication and that the intoxication more likely than not caused the accident. Conley v. Liberty utual Insurance Co. , 421 So. 2d 254 (La. App. Fourth Cir. 1982), writ denied , 427 So. 2d 1209 (1983).

Likewise, benefits were denied an employee where the record supported the conclusion that the employer had proved by a preponderance of the evidence that the claimant's intoxication was a substantial cause of his job related injury, an injury which ordinarily would not have happened but for the intoxication. Frost v. Albright , 460 So. 2d 1125 (La. App. Second Cir. 1984), writ denied , 464 So. 2d 1266 (1985).

Moreover, where there are two permissible views of evidence in a workers' compensation case, the fact finder's choice can virtually never be manifestly erroneous or clearly wrong. Stutes v. Koch Services , 649 So. 2d 987 (La. App. Third Circuit 1994).

The manifest error-clearly wrong standard demands great deference to the findings of the trier of facts because only the fact finder can be aware of variations in demeanor and tone of voice that bear so heavily on listener's understanding and belief in what is said. Smith v. Radisson Suite Hotel New Orleans , 650 So. 2d 333 (La. App. Fifth Circuit 1995). However, the appellate court is not required to affirm the trier of fact's refusal to accept as credible uncontradicted testimony where the record indicates no sound reason for its rejection and where the factual finding itself has been reached by overlooking applicable legal principles. Id.

In Mississippi the viability of the intoxication defense depends upon whether the injury or death was "occasioned by" intoxication. s. Code Ann. §6998-04 (1952).

In Murphy v. Jac-See Packing Co. , 208 So. 2d 773 (1968), the court held that the evidence sustained a finding of the Worker's Compensation Commission that the employer had failed to prove that a salesman's intoxication was the proximate cause of the fatal auto accident. In Reading & Bates, Inc. v. Whittington, 208 So. 2d 437 (1968), substantial evidence supported the finding that the employee's intoxication was not a contributing factor to the accident.

The Workers' Compensation Commission, not the administrative judge, is the ultimate fact finder and the appellate court will apply a general deferential standard of review to the Commission's findings and decisions despite the actions of the administrative judge. Thus, the court will defer to the Commission's findings unless the Commission commits prejudicial error. Lanterman v. Roadway Express , 608 So. 2d 1340 (Ms. 1992). As long as the Commission's decision contains no error of law and is based on substantial evidence, the Mississippi Supreme Court will not disturb its findings as the Commission is the ultimate finder of facts in compensation cases and, as such, its findings are subject to normal, deferential standards upon review. Natchez Equipment v. Gibbs , 623 So. 2d 270 (1993).

D. VOLUNTARY INTOXICATION AND INTENT TO HARM ONESELF

Cases dealing with the issue of voluntary intoxication and an employee's injury also sometimes consider the other important provision of Section 3(c) of the Longshore Act, i.e. , "No compensation shall be payable if the injury was occasioned. . . by the willful intention of the employee to injure or kill himself or another." However, you employers' or defense counsel out there should not rush to judgment now believing or thinking that you have a double- edged statutory defense in the type of claims under discussion. Attempts to treat drinking, in violation of the employer's rules, as "wilful misconduct" under this statutory defense have generally been unsuccessful, usually for lack of clear causal connection between the drinking and the injury. A good example of these cases is Chancy v. Pope , 136 Ga, App. 826, 222 S.E. 2d 667 (1975), wherein the decedent was killed when the crop-dusting plane he was piloting crashed. The court held that the fact that the decedent had consumed two cans of beer about six hours before the crash in violation of FAA regulations was not enough to deny death benefits due to wilful misconduct, because there was no evidence that the beer consumption proximately caused the death .

E. CONCLUSION

In conclusion, it is apparent that courts and administrative agencies are inclined to avoid a forfeiture of compensation benefits on the basis of the intoxication except when the defense is clearly made out . Since intoxication is an affirmative defense, the burden of proof of intoxication and of the requisite degree of causation is on the employer, and when there is a conflict in the evidence, a finding by the judge that intoxication was not the cause of the accident will usually be affirmed. Intoxication as the "sole cause" of the injury is the strictest type of statute and presents a severe burden of proof. The majority of attempts to invoke the defense have been unsuccessful and there have been few denials of compensation, even when the intoxication played a substantial part in causing the injury .

Can any general rule be inferred from this survey of cases? I believe so and I would offer the following for your consideration. If, in a perfectly safe place, the employee falls because he is drunk and injures himself, it is clear that the injury results solely from the intoxication and that compensation benefits would most likely be denied. Voluntary intoxication which renders an employee incapable of performing his work ordinarily is a departure from the course of employment, or the so-called "frolic" of his/her own. Under the special statutory defense of intoxication, the requisite causal connection between intoxication and injury varies among the statutes all the way from mere existence of intoxication at the time of injury to the requirement that intoxication be the sole cause . To the extent that there is any room for judicial construction under these statutes, the courts will ordinarily give the intoxication defense as narrow a scope as the words will bear. This in line with the prevailing spirit of compensation law and administration, which minimizes the element of employee fault and maximizes the element of protecting the security and families of all workers.

Does this survey actually lead to the conclusion that the intoxication defense exists only on paper in the statute books? Yes, generally speaking, unless there is clear medical proof of intoxication and if there is no substantial evidence that the accident was caused by any other factor.