JOHN T. KOWALIK, Employee/Appellant, v. MARTINSON CONSTR., UNINSURED, and SCHUETT CONSTR., UNINSURED, Employers, and MN DEP'T OF HUMAN SERVS., and HEALTHPARTNERS, Intervenors, and SPECIAL COMPENSATION FUND.
WORKERS= COMPENSATION COURT OF APPEALS
JULY 8, 2004
CAUSATION - INTOXICATION; STATUTES CONSTRUED - Minn. Stat. ' 176.021, subd. 1. An employer is not liable for compensation benefits if (1) the employee was intoxicated at the time of the injury, and (2) the intoxication was the proximate cause of the injury. Substantial evidence supports the compensation judge=s finding the employee was intoxicated at the time of his fall. However, the employee=s high blood alcohol level, alone, without any direct or circumstantial evidence the intoxication caused the employee=s fall, is insufficient to meet the respondents= burden of proving the employee=s intoxication was a proximate cause of the injury, and the compensation judge=s decision is reversed.
EVIDENCE - EXPERT OPINION. The employer=s roofing safety standards expert lacked the training and experience to qualify him as an expert on the effects of alcohol on the human body, and the compensation judge improperly admitted his testimony on the probable effects of the employee=s intoxication.
Reversed and remanded.
Determined by Johnson, C.J., Wilson, J., and Pederson, J.
Compensation Judge: Patricia J. Milun
Attorneys: James E. Lindell, Lindell & Lavoie, Minneapolis, MN, for the Appellant. Edward A. Zimmerman, The Business Lawyers, Burnsville, MN, for Respondent. Thaddeus V. Jude, Minnesota Dep=t of Labor & Indus., St. Paul, MN for the Special Compensation Fund.
THOMAS L. JOHNSON, Judge
The employee appeals from the compensation judge=s finding that the employee=s intoxication was the proximate cause of his injury. We reverse and remand the matter to the compensation judge for further proceedings consistent with this decision.
John T. Kowalik, the employee, was hired by Kevin Schuett of Schuett Construction to work as a roofer on a residential construction project in Belle Plaine, Minnesota. Schuett Construction was a sub-contractor of Martinson Construction. Both Schuett and Martinson were uninsured for workers= compensation liability. The employee was hired to perform the framing, roof sheeting and completion of the house. The employee=s first day on the job was Wednesday, March 20, 2002. The employee and Terry Sipe, a coworker, spent the weekend of March 23 and March 24, 2002, at the job site, sleeping on cots in the basement of the home. Both of them drank beer on Sunday evening and stayed up late that night because they were not sure whether or not they were working the next morning. The employee admitted he also drank beer on the morning of Monday, March 25, 2002. (T. 64.) The employee testified he spoke on the phone to Mr. Schuett on Monday morning, March 25, 2002 and was instructed to commence placing plywood on the roof of the house. (T. 62-63.) Mr. Schuett testified he arrived at the job site at approximately 10:30 A.M., at which time he observed the employee and Mr. Sipe cleaning snow off the roof, preparing to continue roofing. Mr. Schuett testified he did not encounter the employee before lunch. (T. 189.)
At noon on Monday, the crew left the site to have lunch. The employee testified that he, Terry Sipe, John Borner, Scott Schuett, and Kevin Schuett all had lunch together at Charlie=s Bar in Henderson, Minnesota. The employee admitted drinking two beers at lunch and testified Kevin Schuett had a drink with his lunch. (T. 63-64.) Mr. Schuett testified that he, Scott Schuett, and John Borner drove together and ate at The Brass Top. Mr. Schuett stated the employee and Mr. Sipe ate at a different restaurant and drove separately. (T. 189-190.) Mr. Sipe testified they all had lunch together and all of them consumed alcohol. (T. 129-130.)
The employee returned to the job site after lunch and continued his roofing duties. The employee testified that the roof at that time was in various stages of completion, with little patches here and there that needed to be covered with plywood, and that he was working in an area of the roof which he described as Acluttered.@ The employee testified he was walking along the roof toward a dormer with a small piece of plywood in his hand, preparing to place it on the roof, (T. 73-74) having just received this plywood from Mr. Schuett, who had cut it to the dimensions specified by the employee. (T. 283.) In stepping around the clutter, the employee testified, he placed his foot on a piece of subfascia, which broke off under his weight, and he fell from the roof to the ground. The employee testified he would normally expect a subfascia board to carry his weight. (T. 38-41.)
Mr. Schuett testified that after lunch he was working on the dormer of the house when the employee asked him a question. Mr. Schuett stated the employee was also on the roof but that he could not see him. Mr. Schuett testified he heard the employee yelling at him but could not understand the employee because he was mumbling. Mr. Schuett testified he then placed a step-ladder near the corner of the dormer and climbed up closer to the employee. As he climbed up the ladder, Mr. Schuett testified, the employee was asking him about whether plywood was needed in a particular valley on the roof and was trying to point out the spot to Mr. Schuett. Mr. Schuett testified he could not see where the employee was pointing and asked the employee to move so that he could look. He stated he continued up the ladder, and, the next time he looked up, the employee had fallen. Mr. Schuett denied there was any debris on the dormer wall and stated there was no plywood sheathing on the dormer whatever. (T. 191-194.) Mr. Schuett characterized the employee=s speech as mumbling and slurred, and he testified that he instructed the employee to come down off the roof. (T. 214-215.)
The deposition of Mr. Schuett was received in evidence. (Resp. Ex. 7.) In that deposition, Mr. Schuett gave the following answers to questions from counsel for the Special Compensation Fund:
Q. What were the job responsibilities that Tim had? You mentioned he was a roofer.
A. Just putting on the roof sheeting.
Q. And nothing else?
A. Nothing else.
Q. And were you at the job site when he fell from the roof?
A. Yes, I was.
Q. Did he fall from the roof or from a ladder?
A. He fell from a wall. It was a dormer wall.
Q. And how was he supporting himself at the time he fell?
A. He was on top of the 2 x 6 wall.
Q. And what time of day was it when he fell?
A. Just shortly after noon.
Q. And where were you?
A. I was on a ladder right next to him.
Q. So how may feet away were you?
A. One foot, two feet.
Q. Did you see him fall?
A. I only seen it when he actually hit the roof. But he was right directly behind me, because I had asked him to move back because I wanted to get up in that corner. He just came over to ask me a question, and I just said, move back a little, and he did, and the next thing I know he=s hitting the roof and going onto the ground.
Q. And what caused him to fall?
A. That I don=t know.
Q. What did you see?
A. What I seen was just him hitting the roof. And what I was told by him was that he stepped on the facia, but to do that he=d have to be right next to me and I told him to move backwards. So I don=t know how he - - what caused him to fall, I don=t know.
Mr. Sipe testified he was on the opposite side of the roof when the employee fell and did not see him fall. Mr. Sipe aided the employee after his fall and helped him into a car to be taken to the hospital. Thereafter, Mr. Sipe and Mr. Schuett located upon the ground the piece of subfascia that broke away when the employee stepped on it. Mr. Sipe testified the subfascia had been improperly nailed into the rafter and was just barely fastened. (T. 126-128.) Mr. Schuett testified that he had installed the piece of subfascia in question on the roof before lunch with two nails, stating, AI had just put it up before lunch and we were coming back to continue working on it.@ (T. 208.) Mr. Schuett denied the subfascia board had been improperly nailed. (T. 224-225.) The employee testified that a subfascia piece is a 2x6 board, which is nailed to the rafters, to support the plywood that is placed over it. (T. 75-76.)
The employee was taken to the St. Francis Hospital emergency room, in Shakopee, Minnesota, where he reported having experienced a brief loss of consciousness following a twenty-foot fall from the roof and gave a history of alcohol abuse and withdrawal seizures. A blood sample taken at the hospital showed a serum blood alcohol level of 0.30. Dr. Jeffrey Hill diagnosed a frontal bone skull fracture, a closed head injury, a closed fracture of the left and right ulna, a closed fracture of the left radius, and alcohol intoxication. The employee was then transferred to the Hennepin County Medical Center for treatment.
The employee admitted that he was an alcoholic on the day of his injury and stated that prior thereto, he drank every day. (T. 69.) He denied, however, that the alcohol he consumed on the day of his injury had any effect on his ability to work. (T. 93-94.) The employee stated his alcohol consumption on March 25, was no different than it had been the previous week, and he opined that he was capable of working as a carpenter with a .30 blood alcohol level. (T. 115.) Mr. Sipe stated that he had worked with the employee in the past, and he characterized the employee as a meticulous and good craftsman. He testified the employee did not appear to be impaired by intoxication the morning of March 25.
William J. Holman, Jr., a roofing consultant, testified as an expert witness on matters of residential roofing safety standards. Mr. Holman testified that OSHA standards prohibit workers from using alcohol while performing roofing work. Mr. Holman further testified that walking on a subfascia board is a very dangerous thing to do because the board would not hold a man=s weight. During his experience in the roofing industry, he had not ever seen persons walking on subfascia. In his safety training courses, Mr. Holman saw charts demonstrating how a person=s impairment increases at different levels of intoxication. Mr. Holman opined that alcohol will impair a person=s ability to function safely on a roof because it affects reflexes. When asked whether the employee=s injuries were caused by his intoxication, Mr. Holman testified, over the employee=s objection,
Kowalik, okay, missed several opportunities to stop his fall. I think the first part of his fall was inevitable. For whatever reason, he lost his balance, but he had the trusses to catch before he hit the fascia board. When he was on the roof, I believe he was very close to the valleys. In the valley, he could have spread-eagled. Then he had the safety stop of the jacks along the edge of the roof that, somehow, he got over a 5 2 inch safety stop there, and then fell to the big roof. My opinion is that he either blacked out, or had no conscious ability to try to stop his fall.
(T. 266-267.) On cross examination, Mr. Holman conceded he had no formal education in chemistry, toxicology, pathology, or pharmacology, and that, except for some classes sponsored by the Boy Scouts on alcohol abuse, he had no formal education or training as to the effects of alcohol on the human body. (T. 268-271.)
The employee filed a claim petition seeking wage loss and medical benefits secondary to his fall on March 25, 2002. In a Findings and Order filed November 7, 2003, the compensation judge found the employee was intoxicated at the time of his fall on March 25, 2002, and that his intoxication was the proximate cause of the fall. The employee appeals.
Minn. Stat. ' 176.021, subd. 1, provides the employer is not liable for compensation if Athe intoxication of the employee is the proximate cause of the injury.@ The burden of proof as to these facts is upon the employer. To prevail on this defense, the employer must establish that: (1) the employee was intoxicated at the time of his or her injury, and (2) the intoxication was the proximate cause of the employee=s injuries. Theorin v. Ditec, Corp., 377 N.W.2d 437, 28 W.C.D. 243 (Minn. 1985).
The compensation judge found the employee was intoxicated at the time of his fall. A blood sample taken from the employee at St. Francis Hospital showed a serum blood alcohol level of .30. One of Dr. Hill=s diagnoses was alcohol intoxication. Mr. Schuett testified that, just before his fall, the employee was mumbling or slurring his words. The employee admitted he had been drinking beer on Sunday evening, Monday morning, and at lunch just prior to his fall. This evidence minimally supports the compensation judge=s finding that the employee was intoxicated at the time of his fall, and that finding is therefore affirmed.
2. Proximate Cause
AThe word >proximate= for the want of a better one, is generally used to designate the legal cause of an injury. The proximate cause is that which caused the injury directly, and immediately or through natural sequence of events without intervening, independent, efficient cause.@ Shastid v. Shue, 77 N.W.2d 273, 281 (Minn. 1956) (citing 13 Dunnell, Dig. 3 ed. ' 7000. The burden of proof that intoxication was the proximate cause of the injury is on the employer, and that burden may be met by any competent evidence, whether direct or circumstantial. Thake v. Backhauls, Inc., 345 N.W.2d 745, 35 W.C.D. 565 (Minn. 1984). Intoxication, however, is a bar to compensation Aonly when shown to be the proximate, as distinguished from the contributory, cause of the injury complained of.@ State ex rel. Green v. District Court, 145 Minn. 96, 98, 176 N.W.2d 155, 156 (1920). The intoxication need not be the sole cause of the injury, only a substantial cause. Miels by Miels v. Northwestern Bell Telephone Co., 355 N.W.2d 710, 715, 37 W.C.D. 164, 170 (Minn. 1984). Whether an employee=s intoxication is the proximate cause of the injury is a question of fact. Manthey v. Charles E. Bernick, Inc., 306 N.W.2d 544, 33 W.C.D. 415 (Minn. 1981).
The compensation judge found the employee=s Alevel of intoxication predominates as a factor in causing the employee=s injury to such an extent that it is the proximate cause of Mr. Kowalik=s fall, and subsequent injuries.@ (Finding No. 12.) The employee asserts the compensation judge=s finding as to proximate cause lacks any evidentiary support. The employee further contends the compensation judge made no findings of any direct or circumstantial facts to support the decision. Rather, the employee argues, the compensation judge=s conclusion that the employee=s intoxication was a proximate cause of his injury was based solely on the .30 blood alcohol reading. Accordingly, the employee seeks a reversal of the compensation judge=s denial of workers= compensation benefits.
We first direct our attention to an evidentiary issue. The evidence offered by an employer in support of an intoxication defense often includes the opinion of a doctor, toxicologist, or other expert to the effect that the employee=s blood alcohol content would cause the employee to lack rationality, have poor judgment, or demonstrate significant impairment of function. In this case, the compensation judge, over the employee=s objection, admitted the testimony of Mr. Holman indicating that any alcohol consumption would have an adverse affect on a worker=s reaction, reflexes, and ability to function. Mr. Holman further opined that the employee=s alcohol consumption had impaired his ability to stop his fall, and, in essence, opined that the employee=s intoxication was a proximate cause of his injury. The employee contends Mr. Holman=s testimony lacks foundation and was improperly admitted into evidence. We agree.
A compensation judge is not bound by the common law rules of evidence. Minn. Stat. ' 176.411. However, a witness offering expert testimony on an ultimate factual issue must have adequate foundation for his or her opinion. The competence of a witness to render expert testimony depends on the degree of the witness=s scientific knowledge and the extent of the witness=s practical experience with the matter at issue. Reinhardt v. Colton, 337 N.W.2d 88 (Minn. 1983). Mr. Holman has no training, background, or practical experience to qualify him as an expert on the effects of alcohol on the human body. As such, the compensation judge improperly admitted the testimony of Mr. Holman on the effects of the employee=s intoxication.
Having resolved the evidentiary question, we turn to the issue of whether the compensation judge=s decision is clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted. Minn. Stat. ' 176.421, subd. 1. In this case, the compensation judge made no factual findings concerning the cause of the employee=s fall or his condition or actions prior thereto. However, in her memorandum, the compensation judge stated,
In the present case, there is no credible evidence to establish the mechanism of the injury. The testimony of the employee was found not to be credible and there were no witnesses to the conduct of the employee when he fell off the roof. In this case the trier of fact must decide which has a greater probability of truth: was an intoxication level of 0.300 the proximate cause of the fall or was it not the proximate cause. To do this the Compensation Judge must weigh the probability that the intoxication caused the fall against a complete absence of credible evidence regarding the cause of the fall. When one weighs this evidence one finds that it is more probable that the intoxication caused the fall than it did not.
Mem. at 5.)
Where circumstantial evidence reasonably permits different inferences, the choice of the inference to be drawn generally rests with the factfinder. Fogarty v. Martin Hotel Co., 101 N.W.2d 601, 21 W.C.D. 131 (1960). However, in Burke v. B. F. Nelson Mfg. Co., 219 Minn. 381, 388, 18 N.W.2d 121, 124, 13 W.C.D. 337, 343 (1945) the Supreme Court stated,
Where, upon circumstantial evidence in civil cases, there is a reasonable basis for diverse inferences, the choice of an inference made by the fact-finding body is to be sustained, unless (1) the conflicting inferences stand in equilibrium so that reasonable minds cannot prefer one over another, or unless (2) the choice of inference is otherwise based on mere conjecture and speculation, or unless (3) the inference adopted is manifestly and undeniably contrary to the weight of the evidence as a whole. Clearly, it is not necessary that the evidence in support of the inference adopted must outweigh other reasonable inferences so as to demonstrate their impossibility. (Citations omitted.)
In the present case, the employee testified he stepped on a subfascia board, which gave way beneath his weight, causing him to fall. The respondents contend that it is unreasonable and dangerous to step on a subfascia board and assert the employee did so because his judgment was impaired due to alcohol use. This evidence, they argue, supports the compensation judge=s finding that the employee=s intoxication was the proximate cause of his injuries. However, while impairment of judgment due to intoxication might have been inferred from the fact that the employee allegedly stepped on a subfascia board, the compensation judge implicitly rejected the respondents= theory of the case, and their position as to causation, in that she concluded there was Ano credible evidence to establish the mechanism of injury.@ (Mem. At 5.) The question then becomes whether the compensation judge=s ultimate conclusion as to causation is affirmable on some other basis.
The employee had a .30 blood alcohol reading following his injury, and an employee=s blood alcohol content may certainly be a factor to be considered in determining proximate cause. However, in Olson v. Felix, 146 N.W.2d 866, 24 W.C.D. 83 (Minn. 1966), the Supreme Court noted that individuals have different tolerances for alcohol. Furthermore, sober persons are also injured in falls from roofs. Although Mr. Schuett testified at hearing that the employee was mumbling or slurring his words shortly before the injury, Mr. Sipe testified that he observed the employee to display no visible signs of intoxication. Further, the employee apparently worked from 10:30 a.m. until noon under Mr. Schuett=s observation and direction without visible signs of intoxication. In this case, there is no direct evidence that the employee=s intoxication impaired his ability to perform his job. Similarly, there is no direct evidence that the employee=s intoxication was the proximate cause of his fall. Neither do we find any circumstantial evidence which would permit an inference that the employee=s intoxication caused his fall.
The compensation judge concluded it was more probable than not that the intoxication caused the fall, but the only evidence that supports this conclusion is the blood alcohol test. While the employee admittedly had a very high blood alcohol level, that evidence, alone, is insufficient to support a finding of proximate cause under the circumstances of this case. Given the compensation judge=s conclusion that the cause of the employee=s fall is unknown, it would be equally reasonable to conclude the employee=s intoxication was not the proximate cause of the injury. Thus, the Aconflicting inferences stand in equilibrium so that reasonable minds cannot prefer one over another.@ Burke , at 124, 13 W.C.D. 343. Accordingly, we are compelled to conclude the respondents have failed to sustain their burden of proof that the employee=s intoxication was a proximate cause of the injury. The compensation judge=s decision is therefore reversed and the case is remanded for determinations as to the employee=s wage on the date of injury and the employee=s claims for benefits.
3. Prohibited Act
On appeal, Martinson Construction contends the compensation judge=s decision must be affirmed because the employee=s injury resulted from the performance of an act, drinking on the job, that was specifically prohibited by the employer.
Under the prohibited act doctrine, an intentional violation of a specific order or prohibition by the employer may take the employee outside the scope of the employment. Otto v. Midwest of Cannon Falls, 59 W.C.D. 25 (W.C.C.A. 1999). However, in the present case, we find no evidence in the record that this defense was presented to the compensation judge, and the judge did not enumerate it as an issue for trial. This court will generally not consider an issue for the first time on appeal. Accordingly, we do not reach the merits of the prohibited act defense.