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Sidney v. Raleigh Paving & Patching3/2/1993
-/REF--> 355 S.E.2d 147, disc. rev. denied, 320 N.C. 631, 360 S.E.2d 86 (1987). However, the employer does not have to disprove all other causes or prove that intoxication was the sole cause of the injury. Anderson v. Century Data Sys., Inc., 71 N.C. App. 540, 322 S.E.2d 638 (1984), disc. rev. denied, 313 N.C. 327, 327 S.E.2d 887 (1985). Instead, the employer only has to show that it is more probable than not that intoxication was a cause in fact of the injury. Id. In light of the standard by which we review matters from the Industrial Commission, we now look to the evidence that was heard by the Deputy Commissioner and reviewed by the Full Commission.
The evidence presented at the hearing before Deputy Commissioner Taylor tended to show that on the morning of the accident the decedent was driving a truck for Raleigh Paving from the office to a job site. During the day the decedent was responsible for performing work at several job sites. On at least one trip between job sites, the decedent stopped and bought alcohol. At the end of the day, while returning to the office, the decedent again stopped at a store to purchase alcohol. With the decedent were fellow employees Malcolm Wilkerson and Frank Farrar. All
three of the employees drank from the pint that was purchased, but Farrar testified that the decedent and Wilkerson drank the most.
After the employees' brief frolic, they resumed their journey back to the office. At approximately 6:00 p.m., while attempting to pass another vehicle, the decedent lost control of the truck and was thrown out as it ran off the road. Testimony revealed that at the time of the accident, the decedent was operating the truck at a speed of approximately 70 m.p.h. on a highway with a posted speed of 55 m.p.h. Immediately after the accident, the decedent was taken to a nearby hospital where blood samples were taken. These blood samples indicated that the decedent had a blood alcohol level of 202 milligrams per decaliter approximately one hour after the accident. In addition, the medical examiner's certificate noted that a significant condition contributing to the immediate cause of death was decedent's intoxication. Based on this evidence Deputy Commissioner Taylor concluded that the decedent was intoxicated at the time of the accident and that the decedent's intoxication was a cause in fact of the accident.
Plaintiff takes exception with the Commission's finding that the decedent was intoxicated, claiming that there was not competent evidence in the record to support such a finding. We disagree. Plaintiff bases its contention largely on the fact that Deputy Commissioner Taylor disregarded the uncontradicted testimony of Farrar and Wilkerson. The transcript reveals both Farrar and Wilkerson rode in the truck with the decedent at the time of the accident and that both testified that the decedent did not seem impaired.
The Industrial Commission possesses the powers of a court. Torain v. Fordham Drug Co., 79 N.C. App. 572, 340 S.E.2d 111 (1986). As such, it is the province of the Commission, and not this Court, to determine the credibility of witnesses and the weight to be given the evidence. Id. Despite the uncontradicted testimony of Wilkerson and Farrar, it can only be assumed that Deputy Commissioner Taylor found their credibility lacking in choosing to disregard their testimony. This Court will not set aside the findings of the Industrial Commission simply because there is competent evidence in favor of both sides that would have allowed th
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