Beverly Inmon, Surviving Spouse of Matthew Inmon (Deceased), Appellant,
Convergence Employee Leasing III, Inc., Technology Insurance Company, and AmTrust North America of Florida, Appellees.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
of Accident: April 15, 2015.
appeal from an order of the Judge of Compensation Claims.
William R. Holley, Judge.
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.
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
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
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
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 U.S. 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.[*]
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.
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 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.
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
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 while he was standing somewhere off of
the road. ...