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Campbell v. City of Booneville9/26/2002
TO BE PUBLISHED
OPINION OF THE COURT
AFFIRMING
Although the claimant was injured in an accident while driving his police cruiser, pursuing a suspect, an Administrative Law Judge (ALJ) determined that his voluntary intoxication was "the proximate cause" of the accident and, therefore, that KRS 342.610(3) barred a recovery. Majorities of the Workers' Compensation Board (Board) and the Court of Appeals affirmed, but the claimant continues to maintain that because the ALJ failed to determine that the accident was proximately caused primarily by voluntary intoxication, the decision was erroneous as a matter of law. We affirm.
The claimant, a police officer in the City of Booneville, was not scheduled to work on March 2, 1999. He testified that he finished his second job as an EMT at 4:00, P.M., after which he went home and consumed five or six cans of beer over the next 1 W - 2 hours. At approximately 7:00, P.M., he received a telephone call from an unidentified female who informed him that someone was driving recklessly through town and asked him to investigate. Explaining that he was off duty, he declined to do so and advised the caller to contact the sheriffs department because he was the only police officer in town at the time. He testified that the female called several times thereafter and ultimately threatened to complain to the city council if he refused to respond. At that point, he felt compelled to investigate and did so at about 8:00, P.M. He testified that after about two hours, he came upon a vehicle that matched the description given in the telephone calls. A chase ensued, during which shots were fired at him from the vehicle. It got away eventually, so he notified the state trooper and deputy sheriff whom he had summoned for assistance.
The claimant testified that, shortly thereafter, he stopped another vehicle for traffic violations. The subject, whom he recognized from a prior drug arrest, appeared to be intoxicated. After handing over his license, he sped away, and another high-speed chase ensued. The claimant testified that at times his speed exceeded 100 miles per hour while he pursued the vehicle in the dark, on rain-slick streets and roads. He testified that he had decided to quit the chase but that shots were fired at him from the passenger side of the vehicle. Thus, he notified the sheriff's department and continued the high-speed pursuit while returning fire, at times using one hand to drive and the other to reload his revolver. After his quarry passed another vehicle while negotiating a curve, he attempted the same maneuver, lost control of the cruiser, and was injured when it crashed. To his knowledge, the subject was never arrested, and the county attorney refused to discuss the matter when he inquired.
Tests performed at the emergency room indicated that approximately 40 minutes after the accident the claimant's blood alcohol level was 0.14, and he tested positive for Valium, which he said was prescribed to help him sleep. He was later charged with driving under the influence and discharged from his employment as a police officer. Furthermore, the city asserted that his voluntary intoxication was a complete defense to any workers' compensation liability. Dr. Olash testified that a blood alcohol level of 0.14 would impair a driver's ability to safely operate a motor vehicle. But, when cross-examined, he could not say whether alcohol intoxication or some other factor was the primary cause of the claimant's accident.
The claimant denied that he was intoxicated at the time of the crash and offered lay testimony in support of his assertion. The county jailer testified that he saw the claimant on the even
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