JAMES WALDOCH, Employee/Appellant, v. DONNIE HISCHER, UNINSURED, Employer, KEVIN KOECHER, individually, d/b/a ALL SEASONS BUILDERS and KOECHER ENTERS., UNINSURED, Employer, and RAGS TO RICHES d/b/a GRAYHAWK BUILDERS and AUTO-OWNERS GROUP, Employer-Insurer, and TWIN CITIES ANESTHESIA ASSOCS. and REGIONS HOSP., Intervenors, and SPECIAL COMPENSATION FUND.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 1, 2002
EXCLUSIONS FROM COVERAGE - INTOXICATION. Under the circumstances of this case, and especially in the absence of expert opinion or any observed behavior suggesting intoxication, the judge erred as a matter of law in concluding that intoxication was the proximate cause of the employee=s work injury, despite evidence that the employee ingested Acrank@ prior to his fall from scaffolding at work.
Determined by: Wilson, J., Rykken, J., and Pederson, J.
Compensation Judge: James R. Otto
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge=s finding that intoxication was the proximate cause of the employee=s personal injury. We reverse.
On October 2, 2000, the employee was working as a vinyl siding applicator at a job site with Donnie Hischer, Richard Pietz, a woman named Kris, and a man named Billy. The five of them rode in Mr. Hischer=s truck to pick up lunch. Upon arriving back at the work site, the employee exited the truck and returned to work on some scaffolding eight to ten feet off the ground. Shortly thereafter, Mr. Pietz heard the employee fall and went to the back of the house, where he found the employee lying on the ground.
An ambulance was called and the employee was taken to Regions Hospital. The emergency room note on that date reflects that A[the employee] has a history of marijuana use and crystal meth. Most recent crystal meth was done this morning . . . .@ There is also a notation in the history and physical examination portion of the Regions Hospital report indicating that the employee had used methamphetamine at approximately ten that morning. The employee suffered an open left tibia fracture in the fall, and surgery was performed. He was then off work until April 15, 2001, due to the effects of the injury.
On December 18, 2000, the employee filed a claim petition against All Seasons Builders, seeking temporary total disability benefits continuing from October 2, 2000, permanent partial disability benefits, medical expenses, and rehabilitation services. Following a pre-trial, the employee filed an amended claim petition, also listing Donnie Hischer; Kevin Koecher d/b/a All Seasons Builders and d/b/a Koecher Enterprises; and Rags to Riches, Inc., d/b/a Grayhawk Builders [Grayhawk] as possible employers. Grayhawk was the only named potential employer with workers= compensation insurance. The Special Compensation Fund was also named as a party to the action. Grayhawk filed an answer to the employee=s claim petition, denying an employment relationship or liability for the injury and alleging that the employee=s injury was the proximate result of intoxication.
When the matter proceeded to hearing on September 28, 2001, Mr. Hischer was not present; no one had known where to serve him with notice of the hearing. Mr. Koecher appeared pro se, and Grayhawk was represented by counsel. Counsel for the Special Compensation Fund was also present. The issues included whether the employee was an independent contractor or an employee of Kevin Koecher, All Seasons Builders, or Donnie Hischer; whether Grayhawk, as general contractor, was liable to pay workers= compensation benefits on behalf of any uninsured employer; whether any determined intoxication of the employee was the proximate cause of his October 2, 2000, injury; and whether the employee was entitled to temporary total or temporary partial disability benefits, medical expenses, and rehabilitation services.
At hearing, the employee testified that he used no drugs on October 2, 2000, and that the accident occurred when, upon bending down to pick up siding, he felt the scaffold shift forward underneath him, at which time he jumped backwards off the scaffolding and fell to the ground. Mr. Pietz, on the other hand, testified that three individuals, including the employee, snorted crank (a version of methamphetamine) in the truck after lunch on October 2, 2000, and that the employee fell shortly after they returned to work. Mr. Pietz also testified as to the effects that crank had had on him in the past, indicating that, when he bent over after using crank, he would get a Ahead rush,@ which he agreed was almost a dizzy feeling. When the employee=s attorney objected to Mr. Pietz testifying as to the effects that crank would have had on the employee, the compensation judge overruled, stating, AI=m receiving this testimony as to the effect it has on the witness only.@
In findings and order filed on September 28, 2001, the compensation judge found the employee was an employee and not an independent contractor and that his Aactual employer@ was Amost probably@ Mr. Hischer. The judge also found that Kevin Koecher, d/b/a All Seasons Builder=s and Koecher Enterprises, was an Aintermediate statutory subcontractor,@ and that Grayhawk, as the general contractor, would be liable for payment of all compensation benefits, if any, under Minn. Stat. ' 176.215. The judge went on to find that the employee had sustained a personal injury on October 2, 2000, while working for Mr. Hischer but that the employee was intoxicated at the time, that intoxication was the proximate cause of the personal injury, and that the employee was therefore not entitled to any workers= compensation benefits. The employee appeals.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subd. 1 (1992). Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@ Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Id.
The compensation judge explained in his memorandum that he found that Mr. Pietz Atestified in a highly credible manner@ and that he accepted Mr. Pietz=s testimony that the employee snorted crank on the way back to the job site on October 2, 2000. The judge went on to state,
I also accept as true Mr. Richard Pietz=s highly credible testimony that bending over would give him (and most probably Mr. Waldoch) a blood head rush that would cause any person using crank to see black surrounded by red; and that if one using crank stood up too quickly from a bent over position one would be dizzy.
The judge then concluded,
Based upon the record as a whole, and particularly Mr. Richard Pietz=s highly credible testimony, Mr. James Waldoch=s injuries were due to intoxication by crank (when he bent over to pick up a section of siding) and had a blood head rush that made him dizzy. Mr. Waldoch=s intoxication was the proximate cause of his personal injury on October 2, 2000.
Minn. Stat. ' 176.021, subd. 1, provides that if intoxication is the proximate cause of a work-related injury, the employer is not liable for compensation. The employee contends that the compensation judge erred in relying on the testimony of Mr. Pietz, regarding the effects of crank, in considering the issue of intoxication. Under the circumstances presented here, we agree.
We note initially that the employee made timely objections to Mr. Pietz=s testimony, objecting first as to relevancy, stating, AI think it=s irrelevant what effect it [crank] would have on the witness . . . .@ He next objected on foundational grounds, stating, AThe witness is not qualified to present expert opinion testimony on how drugs would affect the employee or anybody else.@ The judge overruled both objections, eventually stating, AI=m receiving this testimony as to the effect it has on the witness only.@ However, it is clear from his memorandum that the compensation judge accepted that Mr. Pietz=s experience of a head rush, when bending over after using crank, is what Amost probably@ happened to the employee, causing him to fall off the scaffolding. The judge=s conclusion to this effect is purely speculative.
Mr. Pietz admitted that he has no schooling or formal training on the effects of crank, and he is not a toxicologist. He testified only as to his individual experiences with crank and what he has seen on television. He offered no testimony indicating that he had observed any behavior on the employee=s part that would suggest intoxication, and he was not in any position to know what effect crank would have on the employee. There is in fact no evidence that anyone witnessed any sign that the employee was intoxicated, and no one witnessed the fall itself. Just as importantly, none of the potential employers offered any expert testimony or reports of any kind to establish the physical effects of crank in general or the possible or probable effects of crank on the employee. This is not a case where there is no reasonable alternative explanation for the employee=s injury. As such, the record is simply insufficient, as a matter of law, to support the conclusion that the employee was in fact intoxicated, much less that intoxication was the proximate cause of the injury. The judge=s decision to the contrary is therefore reversed. As the judge made alternative findings as to the employee=s entitlement to temporary total disability benefits, medical expenses, and rehabilitation services, which were appealed by the employee but not briefed, we order benefits paid pursuant to the judge=s alternative findings.
 When questioned about the head rush when bending over, Mr. Pietz testified that Ayou see it every day on T.V.@
 Mr. Pietz testified that it was his theory that the employee pushed too hard on a piece of siding that he was applying and one of the ladders tipped and the scaffolding fell.
 Issues raised in the notice of appeal but not addressed in the brief are deemed waived. Minn. Rule 9800.0900, subp. 1.