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IN THE MATTER OF H.M. OAL
 
Case:
DOCKET NO. UCC 90015-93 AGENCY DOCKET NO. 89-1527-C
 
Location:
UNEMPLOYMENT COMPENSATION
 
Date:
JULY 21, 1989, FINAL AGENCY DECISION
 
OPINION:

MEMORANDUM OF DECISION

THE CARRIER REQUESTS REVIEW OF THE WORKERS' COMPENSATION LAW Court (HEREINAFTER WCLJ) DECISION FILED 7/1/93 ESTABLISHING ACCIDENT, NOTICE, AND CAUSAL RELATIONSHIP AND AWARDING COMPENSATION, CONTENDING THAT BECAUSE THE ACCIDENT OCCURRED SOLELY DUE TO THE CLAIMANT'S INTOXICATION, THE CLAIM SHOULD BE DISALLOWED UNDER THE PROVISIONS OF WORKERS' COMPENSATION LAW SEC. 10. IN THE ALTERNATIVE, THE CARRIER REQUESTS THAT IT BE GIVEN ANOTHER OPPORTUNITY TO PRODUCE A REPORT ON WHETHER THE CLAIMANT IS CAPABLE OF TESTIFYING. WHILE IT ADMITS THAT IT FAILED TO PRODUCE SUCH A REPORT AT THE HEARING OF 6/22/93, AS DIRECTED, THE CARRIER CONTENDS THAT THE WCLJ'S REFUSAL TO ALLOW ANOTHER OPPORTUNITY WAS IMPROPER.

THE CLAIMANT, A MAINTENANCE HELPER, WAS DISCOVERED LYING ON HIS BACK AT THE BOTTOM OF A STAIRWELL, WITH HIS FEET ON THE SECOND-TO-LAST STEP, ON 12/26/91. THE UNIVERSITY HOSPITAL RECORDS INDICATE HE WAS DISCOVERED WITH BLOOD DRAINING BRISKLY FROM HIS LEFT EAR, TRANSPORTED TO THE HOSPITAL WHERE HIS BREATHING WAS NOTED TO BE SLOW AND SHALLOW. HE SUSTAINED A LEFT FRONTAL SUBDURAL HEMATOMA, LEFT TEMPORAL BONE FRACTURE AND LEFT FRONTAL AND TEMPORAL LOBE CONTUSIONS, A LEFT MASTOID FRACTURE, UNDERWENT EMERGENCY SURGERY AND SUFFERED SEIZURES AFTERWARDS, CONTROLLED BY MEDICATION. HE HAD A PRIOR HISTORY OF DIABETES AND SEIZURES. HIS ALCOHOL LEVEL ON ADMISSION WAS .32.

RUTH HOOSOCK TESTIFIED ON 6/22/93 THAT SHE IS THE CLAIMANT'S GIRLFRIEND AND HAS LIVED WITH HIM FOR THE LAST

13 YEARS. ON THE NIGHT OF THE ACCIDENT, AT ABOUT 11:12 PM, THE CLAIMANT CALLED HER AND SAID IT WAS ALMOST TIME TO GO HOME. HE WAS VERY HUNGRY AS HE DIDN'T GET A CHANCE TO EAT A REAL BREAKFAST OR DINNER. HE TOLD HER TO MAKE SURE TO WARM UP THE HAM SO HE COULD EAT IT WHEN HE GOT HOME. AT ABOUT 11:40 PM HE CALLED AGAIN AND SAID HE WAS STARVING. HE SAID HE WOULD BE HOME ABOUT 12:15 AM. HIS SPEECH WAS NOT SLURRED OR OTHERWISE ABNORMAL. HE DRANK WHEN HE WAS IN HIGH SCHOOL, LIKE ALL KIDS DID BUT NOT SINCE SHE KNEW HIM. SHE NEVER SAW HIM TAKE A DRINK. HE WAS A WEIGHT LIFTER, INTO HEALTH FOODS AND THE LIKE. THE BOYS WOULD ASK HIM TO GO OUT WITH THEM AFTER WORK, BUT HE WOULD SAY NO, HE HAS TO GO HOME AND LIFT WEIGHTS. THEY HAD NO ALCOHOL IN THEIR HOME. AFTER THE ACCIDENT, SHE CONTACTED A METEOROLOGIST, DAVE EICHORN, WHO SENT HIM A REPORT REGARDING WEATHER CONDITIONS FROM DECEMBER 24TH TO DECEMBER 26TH.

THE RECORD CONTAINS A REPORT FROM DAVID EICHORN, METEOROLOGIST, INDICATING THAT ON 12/24/91 THERE WAS 1/2

INCH OF SNOW, AND ON 12/25/91, 1 INCH. THE CONDITIONS WERE TAKEN FROM THE OFFICIAL NATIONAL WEATHER SERVICE RECORDS TAKEN OF WEATHER OBSERVATIONS FROM HANCOCK

FIELD IN SYRACUSE.

MICHAEL CONROY TESTIFIED ON 4/1/93 THAT HE WORKED IN THE SAME DEPARTMENT AS THE CLAIMANT AND KNEW HIM FOR 1 1/2 YEARS PRIOR TO THE ACCIDENT. HE WOULD SEE HIM 3 TO 5 DAYS A WEEK. HE NEVER SAW THE CLAIMANT DRINK ANY INTOXICATING BEVERAGE, NEVER APPEARED TO BE INEBRIATED, NEVER SMELLED ALCOHOL ON HIS BREATH. THE STAIRCASE ON WHICH THE CLAIMANT WAS DISCOVERED WAS THE ONE CLOSEST TO THE MAIN LOBBY. THE WITNESS USED THEM EVERY NIGHT, TO GO TO THE FIRST FLOOR OR CAFETERIA, WHENEVER HE DIDN'T FEEL LIKE WAITING FOR AN ELEVATOR. HE HAS SEEN WETNESS AND "SLIPPERY WHEN WET" SIGNS IN THIS STAIRCASE. HE DID NOT WORK THE NIGHT ON 12/25/91 AND HAS NO KNOWLEDGE OF THE CONDITION OF THE STAIRS OR THE CLAIMANT ON THAT NIGHT.

RICHARD D. OSBORNE TESTIFIED ON 4/1/93 THAT HE HAS KNOWN THE CLAIMANT FOR 10 YEARS AND WAS HIS SUPERVISOR FOR A WHILE. THEY ARE NOW ON DIFFERENT SHIFTS. HE SAW HIM QUITE A BIT DURING THE DAY; IT WAS HIS JOB TO CHECK ON HIS PEOPLE. HE NEVER SAW THE CLAIMANT DRINK ALCOHOL OR APPEAR INEBRIATED. HE NEVER SMELLED ALCOHOL ON HIS BREATH. AS A SUPERVISOR/FOREMAN, HE RECEIVED TRAINING REGARDING EMPLOYEES WHO MIGHT BE DRINKING. HE WAS TAUGHT WHAT TO LOOK FOR AND NEVER OBSERVED ANY OF THE TELL-TALE CLUES AS FAR AS THE CLAIMANT WAS INVOLVED. HE WAS SURPRISED TO HEAR WHAT HAD HAPPENED BECAUSE HE THOUGHT THE CLAIMANT DIDN'T DRINK AT ALL. THE CLAIMANT WAS FOUND IN STAIRWAY 3, THE BUSIEST IN THE HOSPITAL. IT'S THE EASIEST ACCESS TO THE BASEMENT WHERE THE PHARMACY, RESPIRATORY THERAPY AND ENGINEERING ARE LOCATED, AND TO THE SECOND FLOOR, WHERE THE CAFETERIA IS. IF THERE WERE ANY PROBLEMS REGARDING DEBRIS OR MOISTURE IT WOULD BE IN STAIRWAY 3. HE HAS FOUND WATER ON THE STAIRWAY AND PUT UP "WET FLOOR" SIGNS. IN THE WINTERTIME THEY WOULD ASSIGN SOMEONE IN THAT AREA MOSTLY ALL DAY. HE WAS NOT WORKING THE NIGHT OF 12/25/91.

RICHARD HALL TESTIFIED ON 4/1/93 THAT HE HAS WORKED AT SUNY FOR 10 1/2 YEARS AND HAS KNOWN THE CLAIMANT FOR 19 YEARS. HE WAS PARTIALLY RESPONSIBLE FOR GETTING THE CLAIMANT HIS JOB. HE WORKED WITH HIM FOR FOUR YEARS. AFTERWARDS, HE SAW HIM ABOUT THREE TIMES A WEEK. HE HAS NEVER KNOWN THE CLAIMANT TO BE A DRINKER, NEVER KNEW HIM TO DRINK ON THE JOB, NEVER OBSERVED HIM APPEAR TO BE INTOXICATED, NEVER SMELLED ALCOHOL ON HIS BREATH AND NEVER SAW HIM TO BE TIPSY.

STEPHEN LEBDUSKA, M.D., CLAIMANT'S PHYSIATRIST, REPORTED AND TESTIFIED ON 6/22/93 THAT WHEN HE WAS ASKED TO SEE THE CLAIMANT REGARDING A POTENTIAL ADMISSION TO THE REHAB UNIT, HE ATTEMPTED TO GET A HISTORY FROM THE CLAIMANT, WHO AT THE TIME WAS TOTALLY NON-VERBAL WITH APRAXIA ON THE RIGHT SIDE. AT THIS TIME HE HAS A PROFOUND RECEPTIVE AND MODERATE RECEPTIVE APHASIA AND A VERY MILD RIGHT HEMIPLEGIA. HE WILL INCONSISTENTLY BUT MOSTLY ACCURATELY FOLLOW SIMPLE COMMANDS OR RESPOND TO APPROXIMATELY TWO PHRASES WITH WHICH HE IS ALREADY VERY FAMILIAR. IF YOU ASK HIM TO DO ANY COMPLEX TASKS OR TO

RESPOND TO ANY ABSTRACT PHRASES, HE WOULDN'T BE ABLE TO DO THAT. HE SENSES MOTION AND FOLLOWING MOTION COMMANDS, BUT HE JUST DOESN'T HAVE THE LANGUAGE AREA ANYMORE. HE HAS A SIGNIFICANT COGNITIVE IMPAIRMENT AND HAS BEEN TOTALLY DISABLED SINCE THE ACCIDENT. HE IS NOW PRETTY CLOSE TO HIS FUNCTIONAL MAXIMUM. HE IS NOT CAPABLE OF TESTIFYING. HE NOTED THAT A BLOOD TEST SHOWED A HIGH ALCOHOL PRESENCE, BUT HAS NO KNOWLEDGE OF THE ACCURACY OF THE REPORT OR THE CHAIN OF CUSTODY OF THE SAMPLE. HOWEVER, HE HAS NO REASON TO DOUBT THE INFORMATION IN THE REPORTS. IT WOULD BE A MISTAKE TO STATE THAT HIS OPINION IS THAT ALCOHOL WAS THE SOLE CAUSE OF THE ACCIDENT. HIS ASSUMPTION IS THAT IT WAS CONTRIBUTORY. INFORMATION FROM THE CLAIMANT'S RELATIVES WAS THAT HE HAD A LONG-STANDING HISTORY OF ALCOHOL ABUSE.

RONALD J. DOUGHERTY, M.D., CARRIER'S CONSULTANT, REPORTED AND TESTIFIED ON 4/1/93 THAT HE SPECIALIZES IN FAMILY AND ADDICTION MEDICINE. ADDICTION MEDICINE IS A SPECIALTY NOT RECOGNIZED BY THE AMERICAN MEDICAL ASSOCIATION. IN ADDITION TO THE SUBDURAL HEMATOMA, THE HOSPITAL DIAGNOSED DIABETES, HYPERTENSION AND HIGH CHOLESTEROL. HIS BLOOD ALCOHOL LEVEL WAS .32. TO GET THAT HIGH YOU WOULD HAVE TO DRINK 16 BOTTLES OF 5% BEER, OR ITS EQUIVALENT, WITHIN TWO HOURS. IT'S GENERALLY INDICATIVE OF SOMEONE WHO HAS BEEN DRINKING ON A DAILY BASIS FOR 10 OR 20 YEARS. HE HAS SEEN PEOPLE DIE WITH LOWER LEVELS. WHEN A PERSON HAS A .32 LEVEL HE OFTEN LOSES MOTOR COORDINATION, TENDS TO BE ATAXIC OR NOT STEADY AND HAS IMPAIRED REFLEXES. IT COULD HAVE AN AFFECT ON NEGOTIATING STAIRS. HE CANNOT SAY WITH CERTAINTY WHETHER THE INJURIES WERE SUSTAINED WHILE THE CLAIMANT WAS CONSCIOUS OR NOT. THE ALCOHOL LEVEL COULD HAVE BEEN THE SOLE COMPETENT PRODUCING CAUSE OF THE INJURIES. THERE COULD HAVE BEEN ANY NUMBER OF OTHER REASONS PRESENT, SUCH AS SLIPPING ON A WET STAIRCASE. IT'S POSSIBLE DIABETES MAY HAVE PLAYED A HAND. A SEIZURE MAY HAVE OCCURRED WITH OR WITHOUT THE PRESENCE OF ALCOHOL.

PETER ESCHENFELDER TESTIFIED ON 6/22/93 THAT HE HAS BEEN THE CHEMISTRY SUPERVISOR AND CLINICAL PATHOLOGY AT SUNY FOR TEN YEARS. THEY DO NOT HAVE A FORMAL CHAIN OF COMMAND WITH REGARD TO SPECIMEN HANDLING, BUT THEY DO HAVE A ROUTINE THEY FOLLOW. BLOOD IS HANDLED BY THE PERSON TAKING THE SPECIMEN AND THE SPECIMEN IS LABELED WITH THEIR CONCESSION NUMBER. SPECIMENS TAKEN IN CONNECTION WITH A CHARGE OF DRIVING WHILE INTOXICATED ARE HANDLED BY THE SHERIFF'S DEPARTMENT OF SYRACUSE POLICE; THE HOSPITAL DOES NOT DO THAT TYPE OF TESTING. IN HIS TEN YEARS THERE, MISTAKES IN LABELING HAVE BEEN MADE, BUT HE DOESN'T THINK ONE WAS MADE IN THIS CASE.

UPON REVIEW OF THE ENTIRE RECORD, AND IN PARTICULAR ON THE TESTIMONY OF RUTH HOOSOCK THAT SHE SPOKE TO THE CLAIMANT 20 MINUTES BEFORE THE ACCIDENT, THAT HIS SPEECH WAS NOT SLURRED AND THAT SHE HAD NEVER SEEN HIM TAKE A DRINK; THE TESTIMONY OF MICHAEL CONROY THAT HE KNEW THE CLAIMANT FOR 1 1/2 YEARS, NEVER SAW HIM DRINK OR APPEAR INEBRIATED AND THAT HE HAS SEEN WETNESS AND "WET FLOOR" SIGNS ON THE STAIRCASE ON WHICH THE CLAIMANT WAS FOUND; THE TESTIMONY OF RICHARD OSBORNE THAT HE RECEIVED TRAINING REGARDING EMPLOYEES DRINKING ON THE JOB, KNEW THE CLAIMANT FOR TEN YEARS AND NEVER SAW HIM DRINK OR APPEAR INEBRIATED, AND THAT THE STAIRCASE IN WHICH THE CLAIMANT WAS FOUND WAS OFTEN MOIST AND HAD "WET FLOOR" SIGNS; THE TESTIMONY OF RICHARD HALL THAT HE HAS KNOWN THE CLAIMANT FOR 19 YEARS, NEVER KNEW HIM TO DRINK IN THE JOB, NEVER SMELLED ALCOHOL ON HIS BREATH AND NEVER KNEW HIM TO BE TIPSY; THE TESTIMONY OF DR. LEBDUSKA THAT WHILE ALCOHOL CONSUMPTION MAY HAVE CONTRIBUTED TO THE ACCIDENT, IT WOULD BE A MISTAKE TO STATE THAT ALCOHOL WAS THE SOLE CAUSE; THE TESTIMONY OF DR. DOUGHERTY THAT WHILE ALCOHOL COULD HAVE BEEN THE SOLE PRODUCING CAUSE OF THE ACCIDENT THERE COULD HAVE BEEN ANY NUMBER OF OTHER REASONS PRESENT, INCLUDING A WET FLOOR, AND THE REPORT OF DAVID EICHORN THAT IT SNOWED 1/2 INCH TWO DAYS BEFORE THE ACCIDENT AND 1 INCH ONE DAY BEFORE THE ACCIDENT, THE BOARD PANEL FINDS THAT THE CARRIER HAS NOT PROVIDED SUBSTANTIAL EVIDENCE THAT THE ACCIDENT WAS SOLELY OCCASIONED BY INTOXICATION OF THE CLAIMANT; THEREFORE, THE INCIDENT IN WHICH THE CLAIMANT SUSTAINED HIS INJURIES CONSTITUTES AN ACCIDENT ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT, AND WORKERS' COMPENSATION LAW SEC 10 IS NOT A BAR. THE BOARD PANEL ALSO FINDS THAT THE CARRIER HAS HAD AMPLE OPPORTUNITY TO OBTAIN A CONSULTANT'S REPORT ON THE ISSUE OF WHETHER THE CLAIMANT IS CAPABLE OF TESTIFYING, HAS NOT DONE SO AND THAT ANOTHER OPPORTUNITY IS NOT WARRANTED. ON THE BASIS OF THE TESTIMONY OF DR. LEBDUSKA, THE BOARD PANEL FINDS THAT THE CLAIMANT IS NOT CAPABLE OF TESTIFYING.

ACCORDINGLY, FINDINGS ARE MADE AS INDICATED IN THE PRECEDING PARAGRAPH. THE WCLJ DECISION FILED 7/1/93 IS AFFIRMED. THE CASE IS CONTINUED.

ALL CONCUR.