TED WHITMAN (DECD), Applicant

CREST CONCRETE PROD, Employer

ACUITY INSURANCE CO, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

The findings and order of the administrative law judge are affirmed.

Dated and mailed March 14, 2007
whitmte . wsd : 175 : 8   ND § 7.19

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

The employer contends in its petition for commission review the administrative law judge erred in dismissing its claim for 15 percent decreased compensation. The employer states the administrative law judge should have credited the opinion of Dr. Foster, who completed a WC-16-B dated June 15, 2006, on behalf of the employer. The employer points to the fact that Dr. Foster did research and noted vitreous humor of the eye has been used extensively for toxicological analysis in recent years, and is now recognized as an extremely useful specimen for post-mortem alcohol determinations. Dr. Foster opined based on Mr. Whitman's vitreous sample that to a reasonable degree of medical probability the his blood alcohol content was at least .29 grams per milliliter, which even by conservative estimate would represent over three times the legal upper limit in the State of Wisconsin. Dr. Foster opined that within a reasonable degree of medical certainty the deceased employee's blood alcohol concentration at the time of his death did likely cause or contribute to the motor vehicle accident.

In the case of Heritage Mutual Ins. Co. v. Larsen, 242 Wis. 2d 47 (2001) in which Mr. Larsen while on a business trip, stopped and consumed four to five mixed drinks over a period of approximately one hour and 45 minutes, and subsequently passed out while attempting to return to his residence, resulting in frostbite and an injury to his fingers. The Wisconsin Supreme Court noted the commission was entitled to draw a reasonable inference that an intoxication caused the applicant in the Larsen case to remain asleep for an extended period, and that his injury was caused by a long exposure to the cold. The court cited Haller Beverage Corp. v. DILHR, 49 Wis. 2d 233 (1970), and stated that based on previous decisions the court will defer to the commission's findings regarding whether intoxication caused an injury under Wis. Stat. § 102.58. In the Larsen case a renal consultation report from Dr. Hanna one day after Mr. Larsen's frostbite, stated the applicant suffered from ethanol abuse and loss of consciousness secondary to the above with severe frostbit injury. The Wisconsin Supreme Court stated that Dr. Hanna's report was credible and substantial evidence to establish intoxication, and a causal link between the applicant's intoxication and his loss of consciousness and the injury. Heritage Mutual Ins. Co. v. Larsen, 242 Wis. 2d 47 at 52.

However, the current case is significantly different from the situation in the Larsen case where the Wisconsin Supreme Court found a basis for reduction of 15 percent due to intoxication. In the Larsen case there was a direct link between the medical opinion established in the record and the effects of the alcohol on the employee causing him to pass out for a longer period of time than he would have, if he had not been intoxicated resulting in the frostbite and the injuries to his fingers. In our current case, there was no evidence or witness testimony Mr. Whitman was seen imbibing alcohol in any amounts. Even assuming Mr. Whitman was intoxicated at the time of his death there were no witnesses to establish that he was operating the vehicle in an unsafe manner or erratically. There was no evidence the Mr. Whitman was not conscious at the time of the accident or had passed out due to intoxication, or that he suffered from any other disabilities due to the intoxication which would have affected his operation of the vehicle.

Therefore, in our current case, we have no evidence the deceased employee suffered any ill effects when he was intoxicated. Dr. Foster does not cite any persuasive information in his report to lead to the commission to conclude that it could be established beyond a speculative level Mr. Whitman's intoxication was a substantial factor leading to the accident on September 6, 2005, and untimely death. If there was evidence Mr. Whitman had been driving erratically or on the wrong side of the road or somehow operating in an unsafe manner prior to the incident this may be a different case. However, based on the information presented in the record, the commission agrees with the administrative law judge the employer failed to prove a claim for decreased compensation due to a safety violation. Therefore, the employer's claim for 15 percent decreased compensation was appropriately dismissed with prejudice.

cc:
Deborha Malone
Attorney Jeffrey J. Strande
Abby Butler
Department of Justice

Appealed to Circuit Court.  Affirmed, January 2, 2008.  Appealed to the Court of Appeals.  Affirmed, in unpublished decision, November 19, 2008..

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