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Smith v. Workers' Compensation Appeals Board9/21/1981
COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT
Civ. No. 6321
1981.CA.40332 ; 176 Cal. Rptr. 843; 123 Cal. App. 3d 763
September 21, 1981
CHERYL J. SMITH, PETITIONER,
v.
WORKERS' COMPENSATION APPEALS BOARD, ED SMITH WELDING ET AL., RESPONDENTS
Sims, Solomon & Konnoff and Michael S. Konnoff for Petitioner.
Emerson & Yrulegui and Richard J. Yrulegui for Respondents.
Opinion by Hanson (p. D.), J., with Franson, Acting P. J., and Pettitt, J., concurring.
Hanson
Petitioner Cheryl J. Smith, widow of Eddie G. Smith, seeks review of a decision of the Workers' Compensation Appeals Board (WCAB) denying reconsideration of petitioner's claim for death benefits and burial expenses; the decision adopted and incorporated the report of the workers' compensation judge disallowing benefits on the ground that the decedent was intoxicated at the time of the accident and the intoxication was the proximate cause of death.
Eddie G. Smith, employed by Ed Smith Welding of Bakersfield, California, died February 20, 1979, in an automobile accident while returning to his office from a jobsite. On April 3, 1979, petitioner filed an application for death benefits and burial expenses with the WCAB. She
was subsequently appointed guardian ad litem for the Smiths' two children. A hearing was held before the workers' compensation judge, who prepared the following summary of the evidence.
Bobby Burton Morris (Morris) testified that he was employed by Ed Smith Welding and that, on the day of the accident, he began work at the shop at 6:30 a.m. Eddie Smith (Smith) was already there and outlined the work he wanted done. He told Morris to go to Mount Able and to load trucks with clay. Morris left the shop about 7:15 a.m. in a pickup, which had a company radio, and arrived at Mount Able about 8:30 a.m., driving on a curvy, mountainous, blacktop road with a single lane each way. At the mountain, it was raining and snowing off and on; this weather continued all day. Around noon, Morris called Smith on the radio and asked for more trucks.
About 6 p.m., as they were leaving the mountain, a dump truck with a backhoe went around a curve and the backhoe fell off the trailer. Morris called Smith, who asked what equipment was needed and stated that he would come up. Smith arrived at the scene around 8 p.m. and seemed normal to Morris as far as sobriety was concerned; he was properly dressed for the cold.
Smith asked where Morris wanted the equipment, and then hooked slings to the backhoe, which was some 20 feet off and below the road. It was dark; the weather was cold, it was raining, and the soil was muddy. Morris went down to the backhoe with Smith to help hook it up; Morris fell going down the bank, but Smith did not slip nor fall.
They worked for about two hours to right the backhoe; the weather was still rainy, with a mixture of snow, and very cold. Because it was late, they left the backhoe there to be recovered the next day. At the site were the witness' pickup, Smith's pickup, a hydrocrane, two dump trucks, and a trailer. They convoyed out of the area, Smith leading, and Morris bringing up the rear. It was still raining intermittently. Smith left in his pickup and Morris turned the hydrocrane around. Morris then called Smith on the radio and said he was ready. It was raining very hard at that time. Everyone had been
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