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Brockmeyer v. Stieferman Bros12/5/2000
Appeal From: Labor and Industrial Relations Commission
Opinion Vote: AFFIRMED.
Hoff, C.J., and Crist, Sr. J., concur.
Opinion:
Claimant, David Brockmeyer, was employed by Stieferman Brothers Van & Storage Co. (employer) as a moving van operator. In order to be hired by employer , claimant had to become Department of Transportation (DOT) certified. To become DOT certified claimant had to know and understand the Federal Motor Carrier Safety Regulations and comply with those regulations. During the 16 years of his employment, claimant knew that he had to maintain his DOT certification to keep his employment with employer. He knew that the Federal Motor Carrier Regulations and his DOT certification prohibited driving under the influence of alcohol.
Employer has always had a policy prohibiting drinking while driving. At the time of claimant's accident, employer had a written Substance Abuse Program (DOT-FHWA), which provided under "POLICY" on page one: "It is the policy of The Company that the use,...possession or presence in one's system of ... alcohol by any covered person while on company premises, while engaged in company business, while operating company equipment, or while under the authority of The Company is strictly prohibited." Claimant received a copy of the Substance Abuse Program in early February, 1995. On February 8, 1995, claimant signed a "CERTIFICATION OF RECEIPT AND UNDERSTANDING OF AND CONSENT TO COMPLY WITH THE COMPANY SUBSTANCE ABUSE PROGRAM," which contained the language: "I hereby certify that I have received a copy of The Company Substance Abuse Program; that I have read and understand its contents; and understand that I must be drug and alcohol free as a condition of employment."
Since moving into its building in 1986, employer has forbidden its employees to have alcohol on its premises. A sign stating "NO ALCOHOLIC BEVERAGES ALLOWED ON PREMISES AT ANY TIME" has been continuously posted on the wall in the employees' lounge of the employer's office building. Claimant saw this policy posted on the wall during his employment.
On February 27, 1995, claimant picked up a load in Arizona on behalf of employer and was traveling in a direct route to deliver the load on behalf of employer. At 1:30 p.m. that day, claimant purchased food and possibly more than a six pack of beer from a truck stop in Arizona. He drank beer on the parking lot and left the truck stop about 2:30 p.m. Approximately three hours later claimant's truck veered off the road and onto the right shoulder of the highway without any evidence of braking or evasive action, veered back onto the highway, overturned, slid on its side, and came to a rest in the median. Employer's toxicologist testified that claimant had consumed eight to twelve beers the day of the accident and that his blood alcohol level at the time of the accident was 0.15, a level sufficient to impair a person's ability to drive.
Claimant filed a claim for compensation with the Labor and Industrial Relations Commission on April 7, 1995. The ALJ made an award denying benefits. The commission affirmed the ALJ's award, with one member dissenting. The commission determined that claimant was not entitled to compensation under Section 287.120.6(2) because claimant's intoxication was the proximate cause of the accident and claimant had actual knowledge of employer 's policy prohibiting the use of alcohol while driving.
This court reviews the commission's decision and not that of the ALJ. Faulkner v. Chrysler Corp., 924 S.W.2d 866, 867 (Mo. App. 1996). The standard of review is set out in section 287.495.1 RSMo (1994):
The court, on appeal, sh
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