Beverly Inmon, surviving spouse of Matthew etc. v. Convergence Employee Leasing III, Inc. , 243 So. 3d 1046 ( 2018 )


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  •           FIRST DISTRICT COURT OF APPEAL
    STATE OF FLORIDA
    _____________________________
    No. 1D17-0815
    _____________________________
    BEVERLY INMON, Surviving
    Spouse of Matthew Inmon
    (Deceased),
    Appellant,
    v.
    CONVERGENCE EMPLOYEE
    LEASING III, INC., TECHNOLOGY
    INSURANCE COMPANY, and
    AMTRUST NORTH AMERICA OF
    FLORIDA,
    Appellees.
    _____________________________
    On appeal from an order of the Judge of Compensation Claims.
    William R. Holley, Judge.
    Date of Accident: April 15, 2015.
    April 18, 2018
    B.L. THOMAS, C.J.
    In this worker’s compensation case, Claimant (the deceased
    Employee’s spouse) appeals the judge of compensation claims’
    (JCC’s) final order denying her claim for death benefits and funeral
    expenses under section 440.16, Florida Statutes (2014). In the
    order, the JCC found that no benefits were payable in accordance
    with subsection 440.09(3), Florida Statutes (2014), because the
    Employee’s death was primarily occasioned by his intoxication. We
    reject Claimant’s argument that the JCC was precluded from
    considering an intoxication defense under the circumstances of
    this case. Nevertheless, we reverse the denial of benefits because
    competent, substantial evidence (CSE) does not support the JCC’s
    ultimate conclusion that the Employee’s death was primarily
    occasioned by his intoxication.
    Under subsection 440.09(3), compensation is not payable if
    the injury was occasioned primarily by the intoxication of the
    employee. Although section 440.09(7)(b) also provides that
    evidence of a certain blood alcohol level creates a presumption that
    injury or death was occasioned primarily by the intoxication of the
    employee, the Employer/Carrier (E/C) here were not entitled to the
    presumption due to their non-compliance with the collection and
    chain of custody procedures set forth in the administrative rules.
    See, e.g., European Marble Co. v. Robinson, 
    885 So. 2d 502
    , 506-
    507 (Fla. 1st DCA 2004) (holding that lack of compliance with
    administrative rules on blood-alcohol testing precludes
    presumption that injury primarily occasioned by alcohol).
    Although the JCC found the blood alcohol testing did not
    sufficiently comply with the Florida Administrative Code to
    establish the intoxication presumption under section 440.09(7)(b),
    the results were admissible on other grounds as chain of custody
    and authentication were properly established.
    “When the presumption in section 440.09(7)(b) does not apply,
    employer/carriers must ‘establish, by the greater weight of the
    evidence, that the work-related injury was occasioned primarily by
    the intoxication of the employee.’” See Thomas v. Bircheat, 
    16 So. 3d 198
    , 200 (Fla. 1st DCA 2009) (quoting Wright v. DSK Group,
    
    821 So. 2d 455
    , 456 (Fla. 1st DCA 2002); see also Sterling v. Mike
    Brown, Inc., 
    580 So. 2d 832
    , 835 (Fla. 1st DCA 1991) (affirming
    JCC’s order finding employee’s injury was primarily caused by his
    intoxication even without presumption). Thus, our standard of
    review here is whether CSE supports the JCC’s finding that the
    preponderance of the evidence proved the Employee’s death was
    occasioned primarily by his intoxication, despite the
    inapplicability of the presumption.
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    The undisputed evidence establishes that the Employee, a
    construction helper, had been assigned to an out-of-town job with
    Employer-provided per diem and hotel accommodations. After
    work on April 15, 2015, the Employee’s supervisor dropped the
    Employee off at a bar a few miles from his hotel. Later that
    evening, the Employee was struck and killed by a truck on US
    Highway 1. Surveillance video showed that the Employee was
    weaving in and out of the road shortly before the accident, but the
    incident itself was not video recorded. Claimant, who was talking
    with the Employee on his cell phone at the time he was struck,
    testified that that he was trying to flag down a ride, dropped his
    phone twice during their conversation, and appeared to her to be
    intoxicated, but functional. The E/C stipulated that the Employee
    was on travel status and within the course and scope of his
    employment when the accident occurred. Test results from the
    Employee’s autopsy indicated a blood alcohol level in excess of the
    legal limit. ∗
    In support of their intoxication defense, the E/C presented the
    surveillance video along with the testimony of Corporal Gaugh, the
    traffic homicide investigator who was called to the scene to
    investigate the Employee’s death. The JCC, however, excluded a
    good deal of the investigator’s testimony based on hearsay,
    speculation, and the witness’s lack of expertise as an accident
    reconstruction specialist. The JCC also sustained numerous
    objections to testimony from a private investigator hired by the
    E/C. Notably, the E/C did not present evidence from any of the
    potential eyewitnesses to the accident including the truck driver
    and another motorist who was behind the truck driver.
    In this appeal, Claimant challenges both the sufficiency and
    admissibility of the evidence relied upon by the JCC when he
    determined that the Employee was intoxicated when he was killed
    and that his death was primarily occasioned by his intoxication.
    The JCC’s determination involved findings of fact that must be
    ∗
    Although the JCC found the blood alcohol evidence was
    insufficient, standing on its own, to establish the statutory
    presumption on causation, he accepted expert evidence that the
    Employee’s blood alcohol level constituted intoxication.
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    upheld if any view of the evidence and its permissible inferences
    supports them. See Ullman v. City of Tampa Parks Dep’t, 
    625 So. 2d 868
    , 873 (Fla. 1st DCA 1993) (holding factual findings are
    reviewed for CSE). Based on our review of the record, CSE
    supports the JCC’s factual finding that the Employee was
    intoxicated at the time of his death, even if we were to find, as
    Claimant argues, that the blood alcohol test results should not
    have been admitted for any purpose. But just the fact that the
    Employee was intoxicated will not constitute CSE to support the
    JCC’s ultimate conclusion that his death was primarily occasioned
    by his intoxication.
    In the order on appeal, the JCC concluded that the accident
    was occasioned primarily by the Employee’s intoxication based on
    his finding that the Employee was in the middle of the road at the
    time he was struck. In support, the JCC listed the following
    evidence: (1) the video showing the Employee “stumbling in and
    out of the road where cars were driving by him just minutes prior
    to the actual collision”; (2) damage on the driver’s side of the truck
    “which allows a reasonable inference that [the Employee] was in
    the middle of the road when the [truck] hit its brakes”; and (3) the
    placement of the Employee’s body in relationship to the final
    resting place of the truck that struck him. Assuming, for the sake
    of argument, that the Employee’s presence in the middle of the
    road is both the cause of the accident and primarily a result of his
    intoxication, CSE does not otherwise support the JCC’s finding
    that the Employee was in the road at the time of the collision.
    Under the circumstances here, all three of the factual findings
    are of questionable probative value in establishing the Employee’s
    location at the time of the accident. First, because the surveillance
    video does not show the collision itself, it is unclear why this
    footage alone makes it more likely than not that the Employee was
    in the road when he was struck. Second, the inference that the JCC
    drew from the damage on the truck might be reasonable if an
    accident reconstruction expert had provided an opinion
    establishing the middle of the road as likely the point of impact
    based on, for example, the tire skid marks. Without this evidence,
    and in the absence of eyewitness testimony, the possibility cannot
    be ruled out that the truck veered off the road for some reason
    unrelated to the Employee’s presence and struck the Employee
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    while he was standing somewhere off of the road. Third, the
    placement of the Employee’s body in relation to the truck was
    established by Corporal Gaugh’s testimony of what he observed on
    the scene after the Employee’s body had been moved by emergency
    medical service personnel.
    In short, the JCC’s deduction that the Employee was in the
    road at the time of the collision is based on inferences with no
    direct evidence. Stacked upon this inference is the inference that
    the Employee could only have been in the road because he was
    intoxicated. This is an impermissible stacking of inferences to
    establish an essential finding of fact. See, e.g., Espada Enters., Inc.,
    v. Spiro, 
    481 So. 2d 1265
    , 1268 (Fla. 1st DCA 1986) (reversing
    deputy commissioner’s award of death benefits where finding of
    compensability was based on certain assumptions and inferences
    rather than CSE) (citing Girdley Constr. Co. v. Ohmstede, 
    465 So. 2d 594
    , 596 (Fla. 1st DCA 1985) (reversing deputy
    commissioner’s finding that employee’s death was result of
    compensable accident based on impermissible stacking of
    inferences)).
    Accordingly, we REVERSE the order below and REMAND for
    entry of an order awarding Claimant death benefits and funeral
    expenses under section 440.16.
    JAY and M.K. THOMAS, JJ., concur.
    _____________________________
    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
    _____________________________
    John J. Rahaim II and Amie DeGuzman, Jacksonville, for
    Appellant.
    Rayford H. Taylor of Hall Booth Smith, P.C., Atlanta, and Heather
    Bryer-Carbone of Marshall Dennehey Warner Coleman & Coggin,
    Jacksonville, for Appellees.
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