 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Penrod v. Pride Johnson Heating7/15/2005
iew of the Board's decision.
Penrod argues in his petition that the Board erred in concluding that there was sufficient evidence to support the ALJ's finding that Penrod's voluntary intoxication proximately caused the accident. Penrod contends that Dr. Jortani's opinion does not meet the standard for competent evidence. In particular, it does not establish that Penrod's consumption of alcohol and/or taking of prescription medication impaired him to the point that he was intoxicated and that the primary cause of the accident was his intoxication. In addition, Penrod asserts that there is no other evidence in the record that establishes that Penrod was impaired due to intoxication. Finally, Penrod argues that the blood alcohol evidence clearly established that Penrod was not impaired and did not come close to meeting the legal definition of intoxication that is utilized in criminal prosecutions.
This Court's function of reviewing the Board's affirmance is to correct the Board only where we perceive that the "Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Western Baptist Hosp. V. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). And, in cases such as this one, " hen the decision of the fact-finder favors the person with the burden of proof, his only burden on appeal is to show that there was some evidence of substance to support the finding, meaning evidence which would permit a fact-finder to reasonably find as it did." Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).
KRS 342.610(1) holds an employer liable for compensation for a work-related injury without regard to fault. But KRS 342.610(3) relieves the employer from liability if a worker's injury is "proximately caused primarily by voluntary intoxication as defined in KRS 501.010[.]" Voluntary intoxication is an affirmative defense that the employer must both plead and prove.
KRS 501.010(4) defines voluntary intoxication as follows:
ntoxication caused by substances which the defendant knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know, unless he introduces them pursuant to medical advice or under such duress as would afford a defense to a charge of crime.
Intoxication "means a disturbance of mental or physical capacities resulting from the introduction of substances into the body." KRS 501.010(2).
In this case, the ALJ determined that Penrod was intoxicated. In so doing, he considered the circumstances of the accident, the lay testimony and the expert testimony. Penrod's expert, Dr. Kelly, did not believe that Penrod's operation of the work truck was affected by his consumption of alcohol, however, Dr. Kelly did not consider the effect of Penrod's use of alcohol after taking a Lortab 5. And Dr. Jortani did consider that effect.
The ALJ's findings of intoxication and causation were issues of fact. The ALJ had the sole authority to judge the weight to be afforded the conflicting reports of the two toxicology experts in light of Penrod's testimony as to how the accident occurred and the officer's and paramedic's testimony as to Penrod's behavior at the scene. See McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46, 47 (Ky. 1974). The ALJ did not believe Penrod's account of the accident and placed greater weight on Dr. Jortani's report and the lay opinions. The Board affirmed the ALJ. And we perceive no error in the Board's assessment of the case. Thus, we must affirm the Board.
ALL CONCUR.
Page 1 2 3 Kentucky DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|