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BLEVINS v. SAFEWAY10/5/1988
Roger Blevins was a produce buyer for a Little Rock Safeway store. On March 10, 1983, Blevins and Alice Denson, a co-worker, went out to dinner with Quinton Lundberg, a regional produce supervisor. Sometime late that evening, or early the next morning, Blevins was killed in a one vehicle accident. He was found dead in his car at 10:00 a.m. on
March 11. A posthumous blood alcohol test registered .22 percent. The Workers' Compensation Commission denied the claim for benefits filed by the appellant, Mr. Blevins' widow. On appeal she raises three arguments: (1) that Blevins' death was not "substantially occasioned" by intoxication; (2) that even if his death was caused by intoxication, the appellee should be estopped to assert this defense, and (3) that Blevins' death arose within the scope of his employment. We affirm the Commission's decision.
[1, 2] Appellant first argues that Blevins' death was not substantially occasioned by intoxication. Ark. Stat. Ann 81-1305 (repl. 1976) (now Ark. Code Ann. 11-9-401 (a)(2) (1987)) provides that "there shall be no liability for compensation under this Act where the injury or death from injury was substantially occasioned by intoxication of the injured employee . . ." There is a statutory presumption that the injury did not result from intoxication. Ark. Stat. Ann. 81-1324 (Repl. 1976) (now Ark. Code Ann 11-9-707 (1987)).
At the hearing before the ALJ, the appellee asked to be permitted to depose a medical witness to establish the effect of a blood alcohol level of .22 percent. In response, the appellant stipulated that the effect was "bad," that .22 percent is more than double the legal intoxication level, and that it was common knowledge as to the condition of a person having such a blood alcohol; level. Ms. Denson, Blevins' co-worker, testified in fair detail about Mr. Blevins' drinking that night, and Mrs. Blevins testified that he invariable came home inebriated after being out in the evening with the produce supervisor. While it is true that there was no direct evidence that Blevins was driving in a dangerous manner on the night of March 10, and there was no eyewitness to the accident, we are persuaded that there was substantial evidence to support the Commission's finding that Mr. Blevins' death was "substantially occasioned" by his intoxication.
Appellant next argues that even if Blevins' death was substantially occasioned by intoxication, the employer is estopped from raising the defense. The courts have taken two basic approaches to this issue. Some have held that the doctrine of estoppel can never bar the employer's assertion of the defense of intoxication. See Hopper v. F.W. Corridori Roofing Co.,
305 A.2d 308 (Del. 1973); Smith v. Trader's & General Ins. Co., 258 S.W.2d 436 (Tex. Civ. App. 1953). This approach has been described as "draconian." See 1 A. Larson, The Law of Workmen's Compensation 34.36, n. 51 (1985). Another group of cases hold that an employer may, in appropriate circumstances, be estopped from asserting the defense and that the issue of estoppel is generally one of fact. See Tate v. Industrial Accident Commission, 261 P.2d 759 (1953); McCarty v. Workmens Compensation Appeals Board, 12 Cal.3d 677, 527 P.2d 617, 117 Cal.Rptr. 65 (1974); West Florida Distributors v. Laramie, 438 So.2d 133 (Fla. Dist. Ct. App. 1983).
This court has implied that estoppel may be available to bar the assertion of the defense of intoxication, under appropriate circumstances. See Davis v. C & M Tractor Co., 4 Ark. App. 34, 627 S.W.2d 561 (1982); In Davis we said:
The employer testified that while he was aware that appellant drank intoxicants on a regular basis and had done so for th
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