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CALVIN JOHNSON Plaintiff-Employee
No. COA94-1034
May 24, 1995
Alexander Dawson P.A. by Alexander Dawson Graham NC for plaintiff-appellant.
Brooks Stevens & Pope P.A. by F. Stephen Glass and Susan M. Hunt Cary NC for defendant-appellants.
McGEE, Justice. Chief Justice ARNOLD and Justice LEWIS concur.
The Hon. Justice McGee

For most of plaintiff Calvin Johnson's adult life he worked as a "limber/topper" (topper) cutting the limbs and tops off trees already cut down by a "stumper." On Monday 11 June 1990 at approximately 11:00 a.m. plaintiff was working as a topper for defendant Charles Keck Logging when he was injured by a partially-cut tree blowing over on him. Plaintiff was taken to the emergency room at Halifax-South Boston Community Hospital (Community Hospital) where a physical examination and various tests were conducted to determine plaintiff's condition. One test administered was a blood alcohol analysis performed on a blood sample allegedly collected from plaintiff at approximately 1:24 p.m. The blood test results showed the blood alcohol content of plaintiff's blood was .11.

A deputy commissioner of the N.C. Industrial Commission held a hearing on plaintiff's request for benefits on 9 September 1991. The evidence included the results of plaintiff's blood test which were admitted into evidence over plaintiff's objections. The deputy commissioner also heard testimony about plaintiff's behavior the day of the injury as well as the day before the accident. Plaintiff testified he consumed alcohol during the weekend prior to the accident. Several of plaintiff's coworkers who had been with him during the weekend confirmed that on Sunday plaintiff had consumed wine throughout much of the day until 9:00 p.m. that evening. The next morning plaintiff rode with coworkers on the ninety minute trip to the logging site where he was scheduled to work. None of the coworkers riding with plaintiff observed any behavior indicating he was intoxicated. Nor did plaintiff's coworkers detect him acting in an unusual or irresponsible manner during the work shift. Plaintiff's employer testified plaintiff did not seem intoxicated and he appeared to be performing his duties in his usual manner.

There was testimony as to whether plaintiff was observing various safety guidelines when he was injured. Plaintiff stated he was not wearing safety equipment on the day he was injured. Additionally there was evidence plaintiff was not observing the "two tree-length safety rule" when he was injured. Under the rule everyone working at a logging site must stay two tree-lengths from where trees are being cut down by the stumper.

The deputy commissioner filed an opinion and award on 2 March 1992 concluding that plaintiff's injury was proximately caused by his intoxication and this resulted in "[a] lack of judgment reduced awareness of his surroundings and dullened [sic] senses" and led to plaintiff's "[failure] to adhere to the standard safety rules of logging." Consequently the deputy commissioner denied plaintiff workers' compensation benefits based on N. C. Gen. Stat. SEC. 97-12(1) which states no compensation shall be payable if the injury or death to the employee was proximately caused by: (1) his intoxication, provided the intoxicant was not supplied by the employer or his agent in a supervisory capacity to the employee. Plaintiff appealed to the Full Commission and filed a motion to strike the results of the blood test taken at Community Hospital. On 23 May 1994 a divided panel of the Full Commission affirmed and adopted the deputy commissioner's opinion and award with minor modifications to several of the deputy commissioner's findings of fact. Commissioner James J. Booker dissented and urged that the "correct result in this case would be to follow the rules of evidence and strike from consideration the Halifax/South Boston Community Hospital test results as being inherently unreliable. I would vote to reverse the case and remand to a deputy for rehearing. . . ." We agree with the dissent.

This Court's review is limited to a consideration of whether there was any competent evidence to support the Full Commission's findings of fact and whether these findings of fact support the Commission's conclusions of law. McLean v. Roadway Express 307 N.C.99 102 296 S.E.2d 456 458 (1982). In Penland v. Coal Co. 246 N.C.26 97 S.E.2d 432 (1957) we said:

Findings not supported by competent evidence are not conclusive and will be set aside on appeal. The rule is that the evidence must be legally competent; and a finding based on incompetent evidence is not conclusive. However where an essential fact found by the Industrial Commission is supported by competent evidence the finding is conclusive on appeal even though some incompetent evidence was also admitted at the hearing.

Penland 246 N.C. at 30-31 97 S.E.2d at 436 (emphasis added)(citations omitted). Under these facts the issue is whether there is competent evidence to support the Industrial Commission's finding that plaintiff's 11 June 1990 injury was proximately caused by his intoxication and he is therefore barred from receiving workers' compensation benefits under G.S. 97-12(1).

We agree with Commissioner Booker that the only evidence in the record as to plaintiff's intoxication at the time of the accident was the blood alcohol test conducted by Community Hospital. As we have stated none of plaintiff's coworkers detected any behavior which indicated plaintiff was intoxicated. A later blood alcohol test performed on 11 June 1990 at 6:16 p.m. at Duke University Hospital listed plaintiff's alcohol level as "negative." Therefore the accuracy of the blood alcohol test taken by Community Hospital is critical since the Industrial Commission denied plaintiff's claim pursuant to the intoxication defense in G.S. 97-12(1).

The admissibility of a blood alcohol test "depends upon a showing of compliance with conditions as to relevancy in point of time tracing and identification of specimen accuracy of analysis and qualification of the witness as an expert in the field." Robinson v. Insurance Co. 255 N.C.669 672 122 S.E.2d 801 803 (1961). "In other words a foundation must be laid before this type of evidence is admissible." Id. The expert witness who offers the results of these types of scientific tests must be in a position to "[explain] the way the test is conducted attesting its scientific reliability and vouching for its correct administration in the particular case." FCX Inc. v. Caudill 85.N.C. App. 272 276 354 S.E.2d 767 771 (1987)(emphasis added).

The Community Hospital blood alcohol test contains several discrepancies which affect the reliability of the test results. The chain of custody from the time the blood was drawn from plaintiff until it was tested was never clearly established. The expert witness called to testify regarding plaintiff's alcohol blood test was "a management technologist" in the clinical laboratory at Community Hospital. Although the technologist analyzed the blood allegedly taken from plaintiff he admitted he had not drawn blood in years and that he "didn't know what happened to this particular blood. It was brought to me and I tested it and reported out the results." He discussed in general terms the hospital's procedure for collecting blood and how the tests are conducted. However there was no testimony as to the identity of the phlebotomist who drew plaintiff's blood nor the specific manner in which plaintiff's blood was drawn. The technologist further stated alcohol swabs are not used to clean the area where the blood is drawn if the purpose for the blood is to test for blood alcohol levels; but if other blood tests are being conducted alcohol swabs are used. In plaintiff's case the technologist testified the physicians ordered several types of blood tests including the blood alcohol analysis and there was no testimony as to whether an alcohol or non alcohol prep was used in drawing plaintiff's blood sample. While our Courts do not require the person who draws the blood to testify in every case in order to establish a proper foundation (See State v. Grier 307 N.C.628 632 300 S.E.2d 351 354 (1983) appeal after remand 314 N.C.59 331 S.E.2d 669 (1985)) under these facts other inconsistencies with these critical test results warranted a more thorough development of the chain of custody of plaintiff's blood sample.

Not only is there insufficient evidence to establish an adequate chain of custody of plaintiff's blood sample but there are other disturbing discrepancies relating to the test. The date and time of the blood test were incorrectly marked as having been drawn on the Sunday afternoon before the accident occurred. The technologist blamed the inaccuracy on human error or a possible power failure in the laboratory. Further testimony revealed questions as to whether the machine was correctly calibrated when plaintiff's test was conducted. One expert testified a power failure could have affected the machine's calibration and incorrect calibration can affect the reliability of blood tests. Finally there was testimony that an inadequate number of controls may have been run on this particular specimen which could affect the reliability of plaintiff's test results.

Under these facts there is insufficient evidence to establish that this critical blood alcohol analysis was scientifically reliable or that it was correctly administered in "compliance with conditions as to relevancy in point of time tracing and identification of specimen [and] accuracy of analysis." Robinson 255 N.C. at 672 122 S.E.2d at 803. We find the blood alcohol test from Community Hospital is incompetent evidence of plaintiff's intoxication and therefore we reverse the case and remand it to the Industrial Commission for rehearing.

Reversed and remanded.

Chief Court ARNOLD and Court LEWIS concur.