AFTER DUE AND PROPER NOTICE to the parties this cause came before the undersigned Court of Compensation Claims upon a hearing held June 28, 1994. While I have not detailed a resume of all the evidence after considering same along with the stipulations of the parties and the arguments of Counsel I hereby make the following findings of fact and conclusions of law:

1. The undersigned has jurisdiction over the parties and the subject matter.

2. Venue is proper in Palm Beach County Florida.

3. The parties stipulated to try the issue of compensability only reserving jurisdiction on all other issues including Counsel's fees and costs.

4. The Employer/Carrier defended on the grounds that the injury was occasioned primarily by the Claimant's own intoxication that any disability associated with the underlying habitual use of alcohol is not an injury by accident arising out of the employment and that the Claimant sustained an unexplained fall such that no other explanation for the fall other than the Claimant's own intoxication exists.

5. The parties have also stipulated that the accident occurred on November 5 1988 there was an employer/employee relationship on the date of the accident there was workers' compensation coverage on the date of the accident neither the accident nor the injuries have been accepted as compensable there was timely notice of the accident and injuries as well as timely notice of the pretrial and final hearing.

6. The parties have further stipulated that the records of St. Mary's Clinical Pathology laboratory including but not limited to the blood alcohol results are admissible pursuant to section 90.803(6) Florida Statutes (1989) as a laboratory report made at or near the time of the event recorded by a person with knowledge in the regular course of business and as a regular practice of the hospital's business activity. Also that pursuant to a blood alcohol test which was administered at the time of the Claimant's admission to St. Mary's Hospital on November 5 1988 the Claimant had a .184 alcohol level pursuant to a blood serum test. The Claimant specifically reserved objection to the relevance of the blood serum result.

7. Joint exhibits received into evidence were the deposition of James Walker the deposition of Larry Wright the deposition of Roger Crawford the deposition of Roger Miles a composite exhibit of twelve photographs depicting the scene of the accident and a composite exhibit of charts and graphs utilized in the testimony of the Employer/Carrier's expert witness.

8. Also received into evidence on behalf of the Employer/Carrier was a composite exhibit of the records from St. Mary's Hospital.

9. The Pretrial Stipulation was entered as Court's exhibit.

10. The Claimant testified live before me. Because of his injuries he did not recall the accident. As I was able to discern from the evidence the Claimant was employed as an insulation installer for the Employer when he fell from an air conditioning duct and/or a ladder which was approximately eight to twelve feet off the ground. The accident occurred on Saturday November 5 1988 at St. Mary's Hospital. The Claimant underwent multiple surgeries including a craniotomy a laparotomy and a splenectomy. The Claimant remained comatose for a number of weeks before coming out of the coma.

The Claimant has made a sufficient recovery that he was able to testify about events occurring prior to the accident. The Claimant detailed a long and varied history concerning his alcohol and drug abuse. He began drinking at the age of twelve and getting high at the age of fourteen going "hog wild" when he was seventeen. From the age of twenty until his accident some sixteen years later the Claimant drank alcohol daily. His motto was "I'm Irish an Irishman is never drunk as long as he can hang onto a blade of grass and not fall off the face of the earth. Now that's hammered." He stated that he typically drank anywhere from six to fifteen beers a night Monday through Thursday and he would increase his drinking to twenty or more beers on Friday which was his payday. He would cash the check at a bar drinking until the money ran out or the bar closed. The Claimant was also capable of drinking two cases of beer or about forty-eight beers and then go on for more. In addition the Claimant acknowledged that prior to starting employment with this Employer he attended an alcohol rehabilitation program under the threat of losing his job with a previous employer. Three days after being discharged from this program he was once again "hammered." I note the Claimant admitted that he did not disclose his prior drinking habits or his attendance at the alcohol rehabilitation program to the Employer at the time of his hire.

The Claimant testified that each and every day he would drink as much as he could after work and then pass out between 9:00 p.m. and 11:00 p.m. He then would wake up at 5:30 a.m. to go to work. He explained that he never felt drunk on the job though he admitted to usually being under the influence of alcohol while at work. Despite this he bragged about his abilities as an installer. He believed and his supervisors and co-workers confirmed that he was a good worker who did quality installation work. In fact the Claimant also bragged about his ability to hide his alcohol consumption while he was on the job. He would drink off the work site during lunch or other breaks hiding his alcohol consumption from his Employer. Further the Claimant acknowledged that the Employer did not tolerate drinking or being intoxicated on the job. While he did not recall being taken off a scaffold by Roger Miles and being forced to miss a day's pay due to his intoxicated condition he admitted that if Roger Miles said this happened then he would trust Roger Miles that it did happen. The Claimant also acknowledged attending Employer safety meetings and receiving pamphlets from the Employer. Though he stated he never read the pamphlets he admitted that he knew they concerned the Employer's absolute prohibition against drugs or alcohol while on the job. Moreover the Claimant related that he had been fired from the Employer on a previous occasion because he had missed time from work. At the hearing the Claimant admitted that he missed the time from work because of his alcohol abuse. Although his testimony made light of the Employer's imposed sanctions he conceded that he begged for his job back after he had been fired. Thus I find it clear from the Claimant's own testimony that when the Employer was aware the Claimant was intoxicated on the job the Claimant was not allowed to work and further that the Claimant knew of this consequence.

The Claimant also. stated that it was unusual for him to work on a Saturday which is the day the accident happened. In fact neither the Claimant nor his supervisors and co-workers could recall the Claimant ever working on a Saturday before the accident. Since the Claimant testified with such exactitude as to his drinking patterns I find it reasonable that the Claimant's alcohol consumption on the night prior to the accident which was a Friday payday was at the high end of the Claimant's alcohol consumption as the Claimant admitted that his normal Friday night consumption was one to two cases of beer. I further note the Claimant's admission that performance of insulation work while under the influence of alcohol would make an ordinarily dangerous task more dangerous.

11. I next considered the testimony of Toni Holiday the Claimant's mother who appeared before me live. At the time of the accident in 1988 Ms. Holiday was living in Michigan. She stated that she came to Florida after the accident when the Claimant was in St. Mary's Hospital. She related a conversation she had with Roger Miles while in St. Mary's Hospital. According to Ms. Holiday Roger Miles told her that there had been one time when the Claimant had come to work inebriated and he did not let the Claimant work. Since the Claimant did not have a way to get home Mr. Miles told the Claimant that he would have to just sit and wait until somebody could get him home. I find this testimony supports the Claimant's testimony regarding Roger Miles' truthfulness.

12. I next considered the deposition testimony of James Walker. Mr. Walker was a co-employee of the Claimant. While Mr. Walker was working directly with the Claimant installing the insulation atop the duct he did not actually see the accident. He heard a loud thump and he came down from the ladder and he found the Claimant lying on the ground. Mr. Walker was mystified as to how the accident occurred. Mr. Walker stated that just prior to hearing the thump he was approximately five feet away from the Claimant. Mr. Walker was pushing a piece of insulation towards the Claimant who was supposed to be pulling it. The Claimant was either standing on a ladder or standing on the lower duct as Mr. Walker and the Claimant were insulating the upper duct. Mr. Walker was yelling for the Claimant to grab the material but he never felt any pull from the Claimant's side. After that Mr. Walker states that he heard the thump and he came off the ladder and found the Claimant bleeding.

Mr. Walker also testified regarding the Employer's safety procedures. He remembered Roger Miles handing out safety pamphlets and having meetings where it was stated that drinking and drugs were not tolerated on the job sites. He stated that these meetings would be held once a week and the employees had to sign a form stating that they had received the pamphlets and discussed the topic. He further stated that he never observed any employee at the St. Mary's job site drinking or doing any drugs on the job. According to Mr. Walker the Claimant never appeared drunk to him while on the job. Had Mr. Walker seen the Claimant drunk he would not have worked with him because it would have endangered not only the Claimant but himself. As for the day of the accident Mr. Walker did not notice the Claimant being impaired at all. In fact Mr. Walker believed the Claimant was performing his job in a satisfactory manner.

13. I next considered the deposition testimony of Larry Wright. Mr. Wright was a friend and co-worker of the Claimant for approximately eight years. Mr. Wright testified regarding the Employer's drug and alcohol policy. According to Mr. Wright Roger Crawford stated the policy was automatic termination if an employee was found drinking on the job. He also stated that each Monday morning there would be a safety meeting where they would discuss such topics as wearing a hard hat not standing on the top rung of the ladder and not drinking alcohol on the job. Mr. Wright testified about a prior incident that occurred when he was working as a foreman for this Employer. He explained that the Claimant was fired when it was discovered that he was in a bar drinking when he was supposed to be working on the job site. He was also aware that the Claimant had previously been fired from the Employer because the Claimant was not showing up for work.

Mr. Wright also testified regarding the day of the Claimant's accident. He was not the foreman on the St. Mary's Hospital job. The foreman for this job was Craig Wiggington. Mr. Wright stated that when he first saw the Claimant that morning the Claimant's breath smelled of alcohol. In addition Mr. Wright could tell the Claimant had been drinking by the Claimant's appearance as well as that the Claimant said he had "partied hardy" the night before. Despite this Mr. Wright stated that he was able to see the Claimant's work the day of the accident and it was properly done. In fact there was nothing about the job performance that would suggest the Claimant was impaired on the job that day. In addition the Claimant was steady on his feet when Mr. Wright saw him that morning. Mr. Wright also testified that he was with the Claimant during lunch and that the Claimant did not have any alcohol during that time nor did he see the Claimant drink alcohol at any time during the day. Mr. Wright did not actually see the accident. He first learned of the accident when Jimmy Walker hollered at him. He went over to the Claimant and he had someone call for the paramedics. Mr. Wright remembered that the ladder the Claimant was using was still standing upright.

I find contradictions in the testimony of Mr. Wright. He said the Claimant appeared to have been drinking heavily the night before the accident because the Claimant came to work in the morning "singing laughing carefree yet he also noted that the Claimant was steady on his feet in the morning. Further, he said the Claimant's work performance was such that the Claimant was not impaired. Moreover, whatever impression of the Claimant's condition he formed, he chose not to disclose his impressions to the foreman, Craig Wiggington, or the supervisor, Roger Miles. Considering James Walker's testimony regarding the dangers of working along side an intoxicated co-worker, I more readily accept Mr. Walker's impressions as to the Claimant's condition because Mr. Walker was working directly with the Claimant at the time of the accident. Additionally, I find Mr. Wright's testimony not credible because Mr. Wright himself had been disciplined by the Employer for being intoxicated while on the job, as testified to by Roger Miles (see, infra). Moreover, I find that Mr. Wright's testimony was likely influenced by his eight year friendship with the Claimant, and I more readily accept the disinterested testimony of those co-workers and supervisors who were not in such close association with the Claimant.

14. I next considered the deposition testimony of Roger Crawford. Mr. Crawford was the South Florida branch manager for the Employer herein on the date of the accident. He was no longer employed with the Employer at the time of his testimony. He stated that drinking on the job was prohibited by the Employer. At least once a month the Employer would have meetings on safety concerning the proper use of tools the proper use of ladders and the prohibition against drugs and alcohol. At these monthly meetings pamphlets regarding the specific safety subject being discussed would be handed out. The employees were expected to sign these pamphlets to acknowledge that they were discussed.

Mr. Crawford was not a witness to the accident nor was he at the job site that day. However Mr. Crawford stated that the day after the accident he went to the job site and took some pictures for the Employer. He observed the Claimant's insulation work and found it was satisfactory. Mr. Crawford testified that the company policy called for termination if an employee was found drinking on the job.

15. I next considered the deposition testimony of Roger Miles who was a Road Superintendent for Mechanical Insulation responsible for overseeing and inspecting the quality of work performed and for ensuring the job ran smoothly. He testified regarding the Employer's alcohol and drug policy. According to Mr. Miles no one was allowed to use drugs or alcohol while on the job. This information was part of the safety meetings. held by the Employer. Each employee had to sign a sheet which was sent to the Employer's Tampa headquarters indicating that they received a pamphlet regarding the safety information.

Mr. Miles also testified that Roger Crawford had previously fired the Claimant because the Claimant had missed time from work. Additionally he recounted an incident where Craig Wiggington had been working with the Claimant and insisted that the Claimant be sent home because he was drunk. He explained that he then had to pull the Claimant off a scaffold and prevent him from working that day without pay. He also remembered having to do the same thing to Larry Wright under similar circumstances.

On the day of the accident Mr. Miles saw the Claimant at approximately 2:30 p.m. shortly before the accident working on top of the duct. He hollered up to the Claimant from about ten to twelve feet away. The Claimant did not sound drunk and the work the Claimant was doing appeared good. He remembered that it was unusual to see the Claimant working on a Saturday. He did not actually see the Claimant fall from the duct. He heard hollering and went to investigate. He found the Claimant on the ground bleeding with the ladder still standing in an upright position.

16. I next considered the testimony of F. Thomas Carroll who testified live before me. Mr. Carroll is the chief forensic toxicologist for the Palm Beach County Sheriff's office as well as the Palm Beach County Medical Examiner's Office. I accepted Mr. Carroll as an expert in the fields of toxicology and forensic pathology. Mr. Carroll was asked to render an expert opinion regarding the Claimant's blood alcohol content at the time of the accident and to further render an opinion as to whether said alcohol content was causative in the accident. Mr. Carroll began by stating that blood alcohol content for purposes of rendering an opinion on intoxication referred to ethyl alcohol which is a grain alcohol. He defined blood as a red fluid that circulates through the body primarily for the purpose of transportation of oxygen to tissues and the removal of waste products from the break down of the normal living process. Blood is composed of two primary parts. One is a solid part which is the red cells and the other is the liquid part which is called serum. The primary difference between the two parts is the water content. Mr. Carroll disputed the notion that whole blood and blood serum are two totally different bodily fluids. As emphasized by Mr. Carroll blood is blood ; both the red cells and the serum are portions or components of the same bodily fluid. Moreover the process of separating the serum from the whole blood does not in any way diminish or increase the alcohol content of the sample. The distinction between whole blood and blood serum for purposes of analyzing blood alcohol content is the different amount of water contained in each. Whole blood contains approximately 83% water while blood serum contains approximately 97% to 98% water. Based on Mr. Carroll's testimony it is clear to the undersigned that whole blood and blood serum are not two different entities and that the only difference between the two is the water content. Further it is clear to the undersigned that an accurate measure of alcohol content can be made from either sample and that the conversion of a whole blood alcohol reading to its equivalent blood serum alcohol reading and vice versa is merely based on the water content. I accept the premise that the Claimant's blood serum reading can be scientifically and accurately converted to its whole blood equivalent within a very reliable range.

Mr. Carroll further explained that in the medical and forensic community the accepted conversion range for serum alcohol to whole blood alcohol is between 10 percent and 18 percent. This means that there is 10 percent to 18 percent more water in serum than in whole blood. Mr. Carroll stated that in his vast experiences testifying in Palm Beach County criminal cases as well as in civil cases the conversion of blood serum to whole blood has been regularly accepted. In addition blood serum is the more frequently analyzed sample because it is more readily utilized in a hospital trauma setting. Hospitals prefer blood serum since the equipment which analyzes blood serum is also capable of running other tests quickly which is critical in life and death hospital emergency room situations. I accept Mr. Carroll's testimony that blood serum is more readily used in hospitals over whole blood and further I accept that the criminal and circuit courts of Palm Beach County use blood serum test results and the conversion to their whole blood equivalents.

Mr. Carroll then testified about the specifics of the Claimant's case. Mr. Carroll reviewed the medical records from St. Mary's Hospital including the laboratory records the deposition of the Claimant given on November 2 1992 the deposition of Larry Wright the deposition of James Walker the deposition of Roger Miles the deposition of Roger Crawford and a packet of materials submitted by St. Mary's Hospital containing the personnel credentials of the laboratory individuals who performed the analysis and blood draw as well as the laboratory procedures quality control charts standardization charts and the maintenance log from the DuPont ACA Enzymatic test analyzer that was used for the analyses in the Claimant's case. In order to perform an analysis of the Claimant's blood alcohol content at the time of his accident Mr. Carroll considered certain pertinent facts which were contained in the records he reviewed:

(a) the Claimant was a thirty-six year old male;

1. the Claimant's past history with alcohol (important for determination of Claimant's tolerance and alcohol elimination rates);

(c) the accident occurred at 2:30 p.m.;

(d) the Claimant's blood was drawn at 3:49 p.m.;

(e) the Claimant's blood serum level was reported at .184 percent utilizing the DuPont ACA (Automatic Clinical Analyzer) test.

(f) the DuPont ACA was properly maintained the daily quality control was run and the machine was standardized properly.

From Mr. Carroll's review of the records he was able to testify within a scientifically accepted range as to the Claimant's blood alcohol level at the time of the accident. This was done through a process known as retrograde extrapolation which Mr. Carroll explained is a quantification of blood alcohol content at a time other than when the blood was drawn. Without detailing the mathematics involved Mr. Carroll was able to convert the Claimant's .184 blood serum test result to its equivalent whole blood range. This range was between .156 and .167 at the time of the blood draw. Mr. Carroll then performed a retrograde extrapolation to determine the Claimant's blood alcohol level at the time of the accident. Again without detailing the specific mathematical computations involved Mr. Carroll determined that the Claimant had between a .171 and .196 blood alcohol level at the time of the accident. Notwithstanding the high concentration of alcohol in the Claimant's system Mr. Carroll explained why the Claimant's co-workers would not have observed noticeable impairment. Mr. Carroll stated that heavy drinkers of alcohol learn to compensate for certain impairments and can perform tasks under the effects of alcohol such that they do not appear impaired. This is known as "tolerance" or the ability to perform a given task under the effect of alcohol seemingly unimpaired.

Mr. Carroll then testified regarding the effects of alcohol on the brain. Alcohol works as a depressant and it affects the higher level functioning of the brain first. Specifically lower concentrations of alcohol affect the cerebral cortex which controls reasoning. In other words an individual trying to retain information contained in a legal brief with a .03 alcohol level would not be able to remember what he has read. Alcohol also decreases inhibitions at the same time and impairs significantly critical judgment. At higher levels of alcohol concentration the cerebellum is affected which causes optical problems. This usually occurs at approximately .10 blood alcohol concentration. This is also where motor involvement such as a staggering gait occurs. An alcoholic is capable of overcoming the ability to walk while drunk provided the individual is only concentrating on one particular task. If the alcoholic is asked to perform two things at the same time he is unable to perform either. This is what is called "divided attention." Thus an alcoholic may be able to stand on one leg but will not be able to count backwards from one hundred while doing so. At even higher levels of alcoholic concentration the medulla is affected. Since the medulla controls the breathing and heart rate an individual's life is threatened at such high concentrations. Predicated upon the above Mr. Carroll concluded that the Claimant's high blood alcohol range (.171 to .196) would have significantly affected his brain functions. As a result of the Claimant's tolerance for alcohol the Claimant could appear to be unimpaired or not intoxicated even though his cognitive functions would have severely diminished. The Claimant would be able to perform a single task assignment however he would fail if asked to perform a divided attention task. Specifically he would have experienced deficits in reaction time visual acuity sensory motor skills depth perception balance dexterity and critical judgment. According to James Walker who was on the duct with the Claimant prior to the accident the Claimant was attempting to retrieve insulation amidst hangars and pipes while balancing himself on a ladder or a duct. At the same time Mr. Walker was yelling to the Claimant to grab the insulation. In addressing causation Mr. Carroll emphatically stated that the Claimant's blood alcohol level of .171 to .196 would have significantly impaired the Claimant's ability to negotiate this divided attention task. Indeed in Mr. Carroll's expert opinion absent an independent mechanism such as a collapsed duct or fallen ladder Claimant's fall was to a very high degree of probability caused by his own intoxication.

17. Based upon a careful review of Florida Statute 440.09(3) the relevant case law and the stipulations of the parties I find that the St. Mary's Hospital blood serum alcohol results are admissible into evidence as I find the parties stipulated that the blood serum results were a laboratory report made at or near the time of the event recorded by a person with knowledge in the regular course of business that the report indicated the Claimant's blood serum alcohol level was .184 and that the evidence is relevant. There does not exist any per se bar to the admissibility of blood serum alcohol results under Florida law. In Gavin v. Promo Brands USA Inc. 578 So. 2d 518 (Fla. 4th DCA 1991) Court admitted blood serum alcohol test results into evidence in a civil proceeding after the defendant sufficiently authenticated the chain of custody for the test results. In the case at bar the parties stipulated to this fact. The Claimant only reserved objection on the grounds of relevancy. In this respect he relies on Florida Tile Industries v. Dozier 561 So2d 654 (Fla. 1^st DCA 1990.) I find that this reliance on Dozier to be misplaced for the following reasons.

1) The Dozier court interpreted the following language:

If there was at the time of the injury 0.10 percent or more by weight of alcohol in the employee's blood it shall be presumed in the absence of substantial evidence to the contrary that the injury was occasioned primarily by the intoxication of the employee. (emphasis added).

Clearly Court's construction was in relation to the presumption afforded by SEC..09(3) and there is nothing in SEC. 440.09(3) or Dozier that renders a blood serum test inadmissible as "non-presumptive" evidence to be considered with all other evidence of record on the issue at bar. Indeed in Sterling v. Mike Brown Inc. 580 So. 2d 832 (Fla. 1st DCA 1991) an intoxication defense was upheld absent any blood alcohol evidence.

2) The Dozier court itself admitted the blood serum result into evidence negating Claimant's assertion that blood serum "per se" is inadmissible. Indeed Claimant herein stipulated to admissibility of the .184 blood serum result.

Thus I find at a bare minimum that blood serum is relevant evidence of at least "non-presumptive" character. As shall be discussed infra I will address whether such evidence in the instant case shall give rise to the statutory presumption.

Moreover pursuant to the supreme court's decision in Love v. Garcia 19 Fla. L. Weekly S80 (Fla. Feb. 10 1994) I find that the Claimant has failed to satisfy his burden to demonstrate the untrustworthiness of the records. According to Garcia once the predicate is laid for the introduction of medical records specifically that the records were made at or near the time by or from information transmitted by a person with knowledge if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum report record or data compilation all as shown by the testimony of the custodian or other qualified witness unless the sources of information or other circumstances show lack of trustworthiness the medical records are admissible. Id. In addition the medical records are presumed to be trustworthy based on the test's general acceptance in the medical field and the test is relied upon in the scientific discipline involved. Id. (citations omitted). From my review of Mr. F. Thomas Carroll's testimony I find that the blood serum test in question is generally accepted in the medical field and that the test is relied upon in the scientific discipline involved. Thus since the Claimant has failed to demonstrate the St. Mary's Hospital blood serum alcohol test results are untrustworthy the test results are admissible into evidence provided the evidence is relevant and its probative value is not substantially outweighed by the danger of unfair prejudice. I find that the St. Mary's Hospital blood serum test results for the Claimant are relevant evidence as it is evidence tending to prove or disprove a material fact. F.S. SEC. 403. In addition I find that the Claimant has failed to satisfy his burden of proof to establish that the probative value of this relevant evidence is substantially outweighed by the danger of unfair prejudice or confusion of issues. In the case at bar the central issue was whether the Claimant's accident was primarily due to his own intoxication. Thus the blood serum alcohol results from St. Mary's Hospital are evidence directly affecting the crux of the legal controversy presented and therefore for the reasons expressed above are admissible into evidence.

18. Based on a thorough analysis of the foregoing and a careful assessment of the credibility of the witnesses who testified live before me I find that the Claimant's accident is not compensable as the accident was occasioned primarily by the intoxication of the Claimant in contravention of F.S. SEC..09(3). The statute provides:

No compensation shall be payable if the injury was occasioned primarily by the intoxication of the employee; .... If there was at the time of the injury 0.10 percent or more by weight of alcohol in the employee's blood it shall be presumed in the absence of substantial evidence to the contrary that the injury was occasioned primarily by the intoxication of the employee. Percent by weight of alcohol in the blood shall be based upon grams of alcohol per 100 milliliters of blood.

The bar to compensation due to a claimant's own intoxication can be satisfied irrespective of the statutory presumption which is contained in the second sentence of the above cited section. In Sterling v. Mike Brown Inc. Id. Court affirmed the Court of Compensation Claims' finding that the accident was occasioned primarily by the claimant's own intoxication. The Court found even absent the presumption and even absent any blood alcohol reading whether blood serum whole blood or otherwise that the claimant was intoxicated and his injuries caused by his intoxication. In the instant case I find that the sum total of competent evidence leads to the singular conclusion that the accident was occasioned primarily by the Claimant's own intoxication. The Claimant admitted in his testimony that he was an alcoholic. According to the Claimant's testimony for approximately sixteen years he was getting drunk daily. Aside from the Claimant's testimony describing his typical pattern of alcohol consumption I find that the physical evidence strongly supports the conclusion that the Claimant's accident was primarily occasioned by his own intoxication. The Claimant had a .184 percent blood serum alcohol level at the time of the blood draw only one hour and nineteen minutes after the accident. Even without converting this amount to its equivalent whole blood level the .184 percent demonstrates that the Claimant was highly intoxicated as indicated on the St. Mary's Hospital ethyl/alcohol record. Indeed the Claimant does not challenge the .184 percent reading itself only its admissibility when derived from blood serum. Thus in effect the Claimant acknowledged that he had almost twice the legal limit of alcohol in his system seeking only to avoid its evidentiary weight through a technical evidentiary objection which I have previously found to be without merit. Furthermore as outlined above Mr. Carroll aptly demonstrated the effects of alcohol on the brain. In sum the effects of alcohol on the Claimant would have upset his performance of a complex motor task such as attempting to retrieve insulation being pushed through to him from the opposite end of a duct as testified to by James Walker while at the same time trying to balance himself on the ladder or duct below. In addition I find the Claimant has failed to present any competent evidence aside from his intoxicated condition to explain the accident. The evidence shows the ladder was still standing upright after the accident and the duct likewise was still in its proper position. Absent any explanation as to the cause of the accident other than alcohol I find that the evidence adduced at the final hearing clearly demonstrates that the Claimant's accident even without resorting to the F. SEC.09(3) presumption was occasioned primarily by his own intoxication.

In addition although not essential to my determination herein I find that the Employer/Carrier is entitled to the F.S. SEC.09(3) statutory presumption in this case. It is undisputed that the Employer/Carrier through the expert testimony of Mr. F. Thomas Carroll has established that the Claimant's blood alcohol content at the time of the accident as expressed in whole blood terms was between .171 percent and .196 percent well in excess of the statutory limit of .10 percent thus giving rise to the statutory presumption that the Claimant's accident was primarily occasioned by his own intoxication. The Claimant relies on Florida Tile Industries v. Dozier 561 So. 2d 654 (Fla. 1^st DCA 1990) for the proposition that the F.S. SEC.09(3) statutory intoxication presumption must use a whole blood test and that a blood serum test does not satisfy the statutory requirements. Such an argument derives from the false premise that whole blood and blood serum are two totally different bodily fluids. I find as Mr. Carroll testified and although it may seem axiomatic blood is blood. Blood serum is a component of whole blood with simply the red cells having been removed to render the sample amenable to hospital analysis for critical care. I accept Mr. Carroll's testimony that there is absolutely no increase or decrease in alcohol content in the separation process. The specimen being analyzed is still the patient's blood. However with the red cells removed there is more water content in the serum and alcohol "distributes" itself based on water content. Mr. Carroll testified at length that water content differential between whole blood and blood serum is a known and accepted range utilized regularly in criminal court proceedings in Florida to convert blood serum readings to whole blood readings and I accept his testimony. I find there is nothing in Dozier or SEC.09(3) that prevents this scientific conversion.

Indeed a review of Dozier and its underlying decision reveals that a whole blood reading at the time of Dozier's accident could not be ascertained because the scientific prerequisites for retrograde extrapolation were unavailable. The experts in Dozier did not know when Dozier's accident occurred and thus could not go back in time from the time of the blood draw to the actual time of the accident utilizing accepted elimination rates to pinpoint Dozier's blood alcohol content at the time of the accident. No such obstacles to reliable retrograde extrapolation exist in the instant case. The time of Mr. McCullough's accident is known within a range of minutes. Mr. Carroll's uncontroverted testimony based on reliable retrograde extrapolation is that Mr. McCullough's blood alcohol content as expressed in terms of a whole blood reading was between .171 and .196 almost twice the legal limit. There is nothing in SEC..09(3) or Dozier that prohibits reliable conversion and retrograde extrapolation and same is regularly utilized in criminal and workers' compensation courts. See Bush v. State 543 So. 2d 283 (Fla. 2d DCA 1989); Cantrell v. W. & C. Contracting Co. Inc. 817 P.2d 1251 (N.M. App. 1991); Commonwealth v. Sargent 512 N.E. 2d 285 (Mass. Ap. Ct. 1987); Commonwealth v. Russo 567 N.E. 2d 1255 (Mass. App. Ct. 1991); Commonwealth v. Dagnon 605 A.2d 360 (Pa. Super. 1992); Shuman v. State 489 N.E. 2d 126 (Ind. App. 3 Dist. 1986).

On the facts of the instant case I find that the Employer/Carrier through the undisputed testimony of Mr. F. Thomas Carroll has sufficiently and scientifically demonstrated that the Claimant's blood alcohol level exceeded .10 percent and thus the Claimant's claim for benefits is presumptively denied because the accident was primarily occasioned by the Claimant's own intoxication.

Moreover I find that the liberal construction principles applied in Dozier do not apply to the instant case because the Dozier decision interpreted the 1985 version of the Workers' Compensation Act. The 1985 Act provided that where the statute is susceptible to disparate interpretations the construction most favorable to the claimant must be accepted. The 1990 legislative changes to the Florida Workers' Compensation Act abolished this statutory construction and the legislature substituted in its place F.S. SEC.015 which provides that the Workers' Compensation Act shall not be liberally construed in favor of either the claimant or the employer/carrier. The legislative intent as the supreme court stated in Zee v. Gary 189 So. 4 (Fla. 1939) must be interpreted from the whole Act and not from a single section. I find the legislature's intent as embodied by this statutory change adding F.S. SEC. 015 to be procedural and thus applies retroactively. I further conclude that F.S. SEC. 09(3) does not expressly prohibit the use of a blood serum test in establishing the 0.10 percent presumption level. Irrespective of whether a "liberal" construction were utilized I am bound to use a medically and scientifically correct construction as to the definition of blood. As previously accepted herein whole blood and blood serum are not two different bodily fluids. Thus any construction of Dozier that operates from this false premise must be rejected; and conversely a construction which allows for quantification of blood alcohol content from either blood serum or whole blood as components of "blood" can be accepted upon appropriate scientific analysis as is routinely done in criminal and civil courts. In this case the Employer/Carrier through the uncontroverted testimony of Mr. Carroll clearly and convincingly established that the Claimant's blood alcohol level at the time of the accident was well in excess of the legal limit triggering the statutory presumption. Thus as I stated above I find that the Employer/Carrier in the instant case is entitled to the F.S. SEC..09(3) statutory presumption that the Claimant's accident was occasioned primarily by his own intoxication.

Furthermore I find that the Claimant has failed to provide substantial evidence to the contrary that the accident was primarily occasioned by the Claimant's own intoxication and accordingly has failed to rebut the statutory presumption. The Claimant relies on R.H. Hewitt & Associates of Florida Inc. v. Murnighan 382 So. 2d 353 (Fla. 1st DCA 1980) to combat the assertion that his accident was primarily cased by intoxication. The facts of Murnighan however are sufficiently dissimilar to distinguish the instant case. In Murnighan the claimant was an ironworker welding an iron grating to horizontal supports on a stairway forty feet above the ground. As the claimant was reaching for his tools the piece of grating he was standing on slipped and the claimant fell. The claim was found compensable despite the claimant's .14 percent blood alcohol level because there was undisputed testimony from the claimant's co-workers that the claimant's intoxication was not the primary cause of the accident. Rather the primary cause of the accident was that the grating slipped resulting in the claimant's fall. In the instant case the Claimant failed to present any competent evidence of an independent precipitating mechanism for the accident such as the duct or ladder collapsing. Therefore the Claimant has failed to meet his burden of proof to rebut the presumption afforded by the F.S. SEC..09(3). As stated in Avalos v. Williford Farms Inc. 561 So. 2d 1344 (Fla. 1st DCA 1990) it is reasonable to conclude in the instant case that "but for" the Claimant's intoxication the accident would not have occurred.

I further find that the Claimant's attempt to thwart the Employer/Carrier's intoxication defense due to estoppel is not supported by the instant facts or the case law. The Claimant by his own admission was fired on at least two occasions for reasons associated with his drinking. First he was fired by Roger Miles for habitually missing work which the Claimant acknowledged to Court was attributable to his alcoholic/partying lifestyle. He was told he had to shape up and according to Mr. Miles' testimony the Claimant promised he would virtually begging for his job back. Secondly Larry Wright fired the Claimant when he caught the Claimant at a bar when the Claimant should have been on the job.

Even the testimony of the Claimant's mother solicited by Claimant himself acknowledged that Roger Miles had to pull the Claimant off a scaffold On a previous occasion when the Claimant appeared inebriated and made the Claimant sit out the rest of the day. Particularly noteworthy with respect to this incident is the fact that Craig Wiggington the Claimant's foreman on the date of accident was the individual who noticed the Claimant's inebriated condition and brought this to Roger Miles attention; insisting that he be removed from the scaffold for his own safety and the safety of his co-workers. Indeed Roger Miles had taken the same action under the same circumstances with Larry Wright further corroborating the Employer's uniform sanction for violation of its drug/alcohol policy and providing the undersigned with additional reason for discrediting Larry Wright's testimony. Accordingly I conclude that had Craig Wiggington even suspected that the Claimant was impaired on the date of accident he would have acted consistently with his previous conduct and removed the Claimant from the job. Thus I accept the testimony of Roger Crawford and Roger Miles that the Employer had no knowledge of the Claimant's intoxicated condition on the date of accident and that sanctions would have been imposed upon the claimant had they or Craig Wiggington observed otherwise. I specifically reject any references from Larry Wright which could be construed to the contrary for the numerous reasons previously stated herein.

Moreover the Claimant himself specifically acknowledged that drinking and drugs were not tolerated on the job. He knew about safety pamphlets handed out at job sites and at meetings and while he chose not to read them he knew that the Employer's drug/alcohol prohibition was contained therein. He made light of the Employer's sanctions suggesting that "it was no big deal if he didn't get paid a few days or had been fired for a few weeks. However, although he bragged he could tolerate the Employer's sanctions, he always acknowledged that the policy was that drinking and drugs were not tolerated. That the Claimant chose to ignore this policy, does not negate the policy itself.

The facts at bar present a scenario clearly distinguishable from the encouragement of drinking on the job by the wine-taster in West Florida Distributors v. Laramie 438 So. 2d 133 (Fla. 1st DCA 1983). Indeed the Claimant insists that he did not drink on the job. His modus operandi was to drink until he passed out the night before and/or "sneak" a drink or joint in his car on breaks or at lunch. He swears he never got caught drinking or doing drugs on the job. By contrast I find the facts at bar comport with the logic and reasoning applied in Avalos v. Williford Farms. Inc. 561 So.2d 1344 (1^st DCA 1990). Court therein held that the Employer/Carrier was not estopped from raising the defense of intoxication where evidence showed that a crew leader occasionally had beer with workers since this action did not show specific employer involvement in the drinking practices of workers as to practically condone the regular practice of becoming inebriated.

Furthermore I accept the expert testimony of Mr. Carroll that the Claimant being a habitual alcohol abuser would have been able to "mask" his intoxication from his co-workers and supervisors. See Williard v. State 462 So. 2d 102 (Fla. 2d DCA 1985) (where Court found overwhelming evidence to support a DWI conviction based primarily on a toxicologist's testimony that the defendant's blood alcohol level was between .152 percent and .196 percent at the time of the accident and that the defendant would be able to mask these symptoms to lay observers).

In conclusion I find the facts at bar bespeak of an Employer who did not tolerate drinking on the job and repeatedly warned and exacted reprisals upon the Claimant whenever proof of his excesses were evident acting for the safety of the Claimant and co-workers. Accordingly the Claimant's attempt to assert an estoppel is rejected.

19. In summary upon a review of all the evidence Florida Statute 440.09(3) the relevant case law and the stipulations of the parties I find that the St. Mary's Hospital records and stipulated blood serum result are admissible in evidence and relevant to the issue at bar. I further find the Employer/Carrier has clearly and convincingly established that the Claimant's accident was occasioned primarily by his own intoxication even without resorting to the F.S. SEC. 09(3) presumption. The only competent facts in evidence concerning causation pertain to the Claimant's own intoxication. The Claimant has failed to present any competent evidence for the accident. There were no witnesses to the Claimant's accident herein. There was no collapse of the ladder or the air conditioning duct. There was no evidence of an independent precipitating mechanism whatsoever. Indeed Jimmy Walker the closest co-worker to the Claimant just prior to the accident was mystified as to how the accident occurred. However his testimony read in conjunction with Mr. Carroll's leaves little mystery as to the precipitating cause. The Claimant was attempting to perform a "divided attention" task under the significant influence of alcohol which severely impaired his cognitive functioning. Most specifically his reaction time depth perception ocular perception motor skills balance and dexterity in an environment which by the Claimant's own admission would be more dangerous while under the influence of alcohol. Indeed the only competent non-conjectural evidence as to the precipitating cause of the Claimant's accident in the instant case is the Claimant's own intoxication.

As to Claimant's contention that "this accident could have happened to anyone intoxicated or not aside from the absence of any competent, non-conjectural evidence except for his own intoxication, what is clear is that such an accident did not befall Jimmy Walker performing the exact same task on the opposite side of the duct. As Mr. Carroll testified without contradiction, it was very lucky" that the Claimant had not suffered an accident at some previous time or date. Given the effects of alcohol on the Claimant's brain at his level of intoxication his "luck" was bound to run out. Moreover the Claimant's accident happened on a Saturday a day the Claimant admitted he had never worked on before. The Claimant also admitted that payday was on Friday and that he would drink heavily on payday. Thus this date and time was not so habitual or usual as the Claimant would have this court believe. Although the Claimant would not appear observably drunk to his co-workers while performing habitual tasks as Mr. Carroll testified such "tolerance" could not reliably apply and did not apply to the critical judgment required in the divided attention task sought to be performed. Mr. Carroll's uncontroverted testimony is that Mr. McCullough's accident was primarily caused by his own intoxication and I so find.

Moreover I find that the Employer/Carrier has satisfied its burden of proof to warrant the application of the F.S. SEC.09(3) statutory presumption that the Claimant's accident was occasioned primarily by his own intoxication notwithstanding Dozier. As detailed previously I reject any contention that Dozier operates as a "per se" bar to admissibility of blood serum results and likewise presents subsequent reliable scientific conversion to a whole blood equivalent accompanied by retrograde extrapolation to determine blood alcohol content at the time of the accident. To construe Dozier otherwise would be tantamount to embracing the false premise that whole blood and blood serum are two different bodily fluids with the latter not falling within the definition of "blood;" a premise I decline to embrace as not only medically and scientifically inaccurate but at odds with the routine admission of such evidence in civil and criminal proceedings. A logical and meaningful construction of Dozier must be limited to the facts or lack thereof of that particular case. The Dozier court did not have uncontradicted scientific testimony sufficient to establish within a scientifically accepted range the claimant's blood alcohol level at the time of the accident. As stated above I find in the instant case unlike in Dozier these scientific parameters are known and the uncontroverted conversion and retrograde extrapolation analysis performed by Mr. Carroll establishes that the Claimant's blood alcohol level exceeded the statutory limit at the time of the accident. Finally I find that the Employer/Carrier is not estopped from raising the "intoxication defense as the instant facts clearly show that the Employer did not tolerate drinking on the job that the Employer sanctioned the Claimant and others on previous occasions and that there was certainly no demonstrable showing of specific employer involvement in the drinking practices of the Claimant.

WHEREFORE the undersigned Court of Compensation Claims hereby orders:

1. The claimant's claim for benefits is DENIED in its entirety because the accident was occasioned primarily by the Claimant's own intoxication.