Finocchiaro v. D.P., Inc. t/a Domino's Pizza.

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IN THE SUPERIOR COURT OF THE STATE OF DELAW ARE IN AND FOR NEW CASTLE COUNTY MARTIN FINOCCHIARO, Claiman t-below , Appe llant, v. D.P., Inc. T/A DOMINOS PIZZA, Employer-below, Appellee. ) ) ) ) ) ) ) ) ) C.A. No:06A-05-003 JRS Date Submitted: September 1, 2006 Date Decided: December 29, 2006 Upon Appeal from the Industrial Accident Board. AFFIRMED. ORDER This 29th da y of De cember , 2006, upon consideration of the appeal of Martin Finocchiaro from the decision of the Industrial Accident Board ( the Board ) denying his Petitio n to De termine Compensation Due, 1 the Court finds as follows: 1 The Industrial Accident Board of the State of Delaware, Decision on Petitio n to Determine Compensation, Hearing N o: 12373 18 (Ap ril 12, 2006 ) (hereinafter AIAB Decision@) at 12. 1 1. Martin Finocchiaro (AFinocchiaro@) was making a delivery for Domino=s Pizza (Domino s) on Ju ly 13, 2003, when he w as involv ed in a m otor veh icle accident in his delivery van. He had worked for Dominos for approximate twothree weeks . On the day of th e acciden t, he started work at 2:30 p .m. At the end of his shift, shortly before 8:00 p.m., his manager requested that he make another delivery. He agreed and pulled out of the Domino=s Parking Lot shortly after 8:00. The accident occurred at approximately 8:23 p.m. There is no dispute that Finocchiaro was working within the course of his employment at the time of the accident. He woke up in the hospital eight days after the accident and learned that he had sustained a fractured skull on the left side of his head and a brain contusion with swelling. 2. On the evening of the accident, Finocchiaro was taken to Christiana Care Hospital (ACCH@), where a urine sample and a blood sample were taken.2 The CCH laborato ry repor t indicated that alcoh ol and two other substances, opiates and benzodiazepine, were in his system. 3. Finocc hiaro does not know what hit him or what he hit. His last memory of the accident was going through a traffic light approaching School House Lane when his van=s air bag d eployed . Some time after th e accident he went to the junk 2 IAB Decision at 5. The blood sample was taken at 9:20 p.m. 2 yard and recovered personal belongings from his van, and saw that the van was damaged on the left side. There were pieces of a fiberglass boat inside the van. Finocchiaro believes th at the fiberglass pieces came from a boat being towed by the other vehicle involved in the collision. 4. Finocchiaro received a citation for driving o n the wrong side of the road, but the charge was subsequently dropped. The other driver was not charged. 5. Finocchiaro was not charged with driving under the influence (ADUI@). Finocchiaro states that he did not consume any alcoholic beverages at work and did not bring any from home. The Domino s stor e in wh ich he w as wor king w as quite small - Finocchiaro would have been visible to his supervisors during the time he worked there. He made deliveries and performed tasks that required manual dexterity, such as folding pizza boxes. Earlier in the day, he cut grass and claimed to have had two beers around noon.3 Accor ding to F inocchia ro, he hu rt his rib about one and a half weeks prior to July 13, 2003, and was prescribed Tyleno l 3 for pain asso ciated with the injury. Finocchiaro maintains that this medication contains opiates. 6. Finocc hiaro w as previo usly emp loyed fo r about 2 2 years by the State Department of Transportation, (ADelDot@), as an equipment operator. On May 13, 3 After Dr. Ham eli testified that Finocchiaro likely consumed 7-8 beers, Finocchiaro admitted to drinking three beers. IAB Decision at 11. 3 2003, Finocchiaro tested positive for marijuana. On June 17, 2003, he met with a counselor who recommended substance abuse treatment. He contacted the Employee Assistance Program (AEAP@) and was evaluated at Open Door. 4 After the evaluatio n, Open Door reco mmen ded treatm ent. EAP later notified DelDot that Finocchiaro had declined treatment. Based on EAP=s notification, DelDot terminated Finocchiaro=s employment. Althoug h Finocchiaro claimed there w as a mis-communication, he was terminated for not completing the required treatment classes within the specified time frame.5 Finocchiaro did not file a grievance. 7. On July 12, 2005, Finocchiaro filed a Petition to Determine Compensation Due against D.P. Inc., T/A Domino=s Pizza (ADomino s@), seeking recognition that the injuries he received in the July 13, 2006 accident were workrelated. Dom ino s resp onded that Fino cchiaro h ad forfe ited his rights to workers compensation benefits under 19 Del.C. ' 2353(b)6 because he was intoxicated while working. 8. The Board convened a hearing on March 29 , 2006. D r. Ali Z. H ameli, M.D ., a board certified forensic pathologist and former State Chief Medical 4 The rec ord doe s not disclose the nature o f AOpen Door =s@ mission but Finocchiaro received an evaluation there and was waiting to hear back from them. Transcript of IAB hearing at 29. 5 Transcript of IAB hearing at 29-30. 6 19 Del. C. ' 2353(b ) (2006). 4 Examiner, testified on behalf of Domino s. Dr. Hameli stated that he reviewed a letter from D omino s=s counsel, a traffic report, and the medical records from CCH.7 Dr. Hameli testified that he specifically relied upon the CCH laboratory report concern ing the level of ethyl alcohol in the blood sample taken from Finnochiaro.8 Using a conversion factor, he found that Finocchiaro=s blood alcohol concentration (ABAC@) was at 125 milligrams or .125 gram of whole blood at the time the blood sample was taken.9 Based on this concentration, he concluded that at the time of the accident, Finocchiaro=s BAC would have been, at a minimum, 135 milligrams or .135 gram percent. Dr. Hameli opined that Finocchiaro had consumed approximate seven or eight beers by about noon. Dr. Hameli concluded that Finocchiaro was under the influence of alcohol and that his faculties were severely impaired at the time o f the accid ent. Fur ther, Dr . Hame li testified that a mixture of opiates and alcohol wou ld amplify the effects of alcohol. Dr. H ameli 7 Dr. Ha meli testified that he relie d upo n the po lice report so lely to determ ine the tim e of the acc ident. Brief for Finocciaro at 3. The police report was not admitted into the record. 8 Dr. Hameli explained that he did not use the results from the urine screening because a second p rocedure was not completed to confirm the data. IAB Decision at 4. 9 Dr. Ha meli relied on tests of ethyl alcohol from a serum of blo od that show ed .156 g ram percen t. Dr. Ham eli used a con version factor because Delaware law requires a calculation based on whole blood. The concentration of alcohol in whole blood is less than that found in serum. Using a conservative approach, he reduced the seru m by 20%, the maximum level for reduction, to arrive at .125 gram of whole blood as Finocchiaro =s BAC . IAB De cision, at 4-5. See also Transcript of IAB Hearing at 38-39. 5 could n ot conclu sively say th at intoxica tion caus ed the acc ident. 10 9. On A pril 12, 2005, th e Board denied the Petition because it found that the employ er had m et its burd en und er 19 D el.C. ' 2353(b). This statute provides: If any employee be injured as a result of the employee=s own intoxication, because of the employee=s deliberate and reckless indifference to dang er . . . the em ployee sh all not be entitled to recover damages in an action at law or to compensation or med ical, dental, optometric, chiropractic or hospital service under the compensatory provisions of this chapter. The burden of proof under this subsection shall be on the employer.11 10. The Board relie d prima rily on D r. Ham eli=s testimony that Finocchiaro would have be en intox icated and severely im paired at th e time of the accident. The Board pointed out that Delaware law prohibits a person whose alcohol concentration is .08 or more from driving.12 The Board accepted the results from CCH because Ain any proceeding in which an issue is whether a person is driving under the influence, evidence establishing the presence and concentration of alcohol or drugs in the person s blood, breath or urine shall be relevant and admissib le. 13 Furthe r, Ain any proceeding, the resulting drug or alcohol 10 Dr. Hameli admitted that not everyone operating a vehicle with a .135 whole blood alcohol level will get into a car accident. Brief for Appellant at 4. 11 ' 2353(b ). 12 21 Del. C. ' 4177(a)(4 ) (2006). 13 IAB Decision at 8. 6 concentration reported in a test . . . shall be deemed to be the actual alcohol or drug concentration, without any regard to margin of error. 14 Thus, the Board concluded that Fino cchiaro w as intoxic ated at the tim e of the ac cident be cause his BAC was over .08. 11. Counsel for Finocchiaro argued that the data from CCH was not admissib le because the employer did not prove the sample was maintained through a reliable chain of custody as required by statute.15 The Board found that chain of control need not be proven in this instance beca use chain of custody becomes relevant only when a matter is prosecuted under chapter 41, title 21 of the Delaware code.16 In addition, the Board found that the medical records were admissib le as busin ess recor ds and th at the doc tor was permitted to use these records as a basis upon which to form an opinion. Dr. Hameli was familiar with the hospital for 40 year s. Accordingly, the Board accepted his testimony that the patholo gist, not a forensic psychologist, signs the testing documents after the samples are taken and tested by a technician. 14 The Bo ard found that, in these Id. (citing 21 Del. C. ' 4177(g )). 15 See 10 Del. C. ' 4331(3) (stating that Aa statement signed by each successive person in the chain of custody that the person delivered it to the other person indicated on or about the date stated...@ is prima facie evidence of proper ch ain of custody). 16 See 21 Del. C. ' 4177(h) (stating that AFor purposes of introducing evidence of a person=s alcohol concentration pursuant to this section . . . .@) (emphasis su pplied). 7 circumstances, the chain of custody with respect to blood screening was not relevant. 17 12. The Board also cited Apublic policy@ reasons to support its finding that Finocchiaro was intoxicated.18 Dr. Hameli testified that someone having a .135 gram of alcoh ol in the b lood is ten to twelv e times m ore likely to have an accident than someone who is sober. 19 The Board found that it is sound public p olicy to consider that a person is intoxicated when his/her BAC is above the .08 statutory limit because of the statistical evidence relating to an increased incident of accidents under such conditions. 13. The B oard also did not find Finocchiaro to be a credible w itness because his testimony was inconsistent and dem onstrated a lack of candor. Specifically, Finocchiaro changed his testimony several times and did not volunteer that he was taking medicatio n, includ ing opia tes, at the tim e of the accident. Further, the Board considered testimony regarding DelDot=s termination of Finocchiaro. 17 The lab oratory repo rt is not sign ed by a fore nsic toxic ologist at CCH, bec ause the re is no fore nsic toxicologist at CCH. IAB Decision, at 6. Dr. Hameli testified that CHH does no t have a fo rensic pa thologist. Transcript of IAB Hearing at 57. 18 Intoxication is not defined in 19 Del. C. ' 2301. See Stewa rt v. Oliv er B. Cannon & Son, Inc., 551 A.2d 818, 820-21 (Del. Sup er. Ct. 1988) ( AWhile the Board may consider the provision of Tit. 21 ' 4177 as a legislative expression of public policy regarding being under the influence of intoxicating liquor, such provisions are not controlling in a workmen=s compensation case.@). 19 Dr. Ha meli cited studies co nduc ted by the Ame rican M edical A ssociation and the Nation al Safety C ouncil indicating that someone having .135 milligrams percent alcohol is more likely to be in an autom obile accident. IAB Decision at 6. See also Transcript of IAB Hearing at 43-44. 8 Although Finocchiaro testified that he stopped using marijuana and that he did not refuse treatment, the Board still found Finocchiaro=s testimony suspect in light of the fact that he did not file a grievance after his termination. The Board concluded that Finocchiaro=s testimony was Aincredu lous. 20 14. Finally, the Board noted that 19 Del. C. ' 2353( b) prov ided an a lternate reason to deny benefits. Benefits may be denied to one whose behavior demonstrates a Adeliberate and reck less indiff erence to danger . 21 The Board accepted Dr. H ameli=s testimony that the combination of beer and drugs in the Finocchiaro=s blood would h ave rendered Finocch iaro even more impaired. Th us, Finocchiaro=s use of Tylenol 3 and alcohol constituted a Adeliberate and reckless indifference to danger@ because he knew he would be driving. 15. Finocchiaro appeals the Board=s finding s on tw o grou nds: (1) that the employer did not establish the chain of custod y for the C CH lab oratory r eport, thereby renderin g Dr. H ameli=s testimony based on that report inadmissible; and (2) that the finding of the Board is not supported by substantial evidence.22 20 IAB Decision at 11. 21 ' 2353(b ). 22 Brief for Appellant at 5-6. 9 16. This C ourt has jurisdictio n to hear and determine appeals from the Board.23 The scope of review is narrow . [I]t is well e stablished that the ap pellate court does not sit as trier of fact, rehea r the case, o r substitu te its own judgm ent for that of the Board. 24 Questions of law, however, are subject to de novo review. In that instance, th e appellate court m ust determ ine wh ether the B oard err ed in formulating or applying legal precepts.25 Therefore, the Aonly role of the ap pellate court is to determine whether the decision of the Board is supported by substantial evidence and free of legal error. 26 In its revie w, Athe Court will consider the record in the light m ost favo rable to th e prevailin g party b elow. 27 17. Finocchiaro first argues that the Board erred when it permitted Dr. Hame li to rely on the CCH labo ratory rep ort in his te stimony . Accor ding to Finnochiaro, Domino s failed to establish a chain of custody and the validity of the blood alcohol reading taken at CCH, rendering Dr. Hame li=s testimony 23 19 Del. C. ' 2350. 24 Standard Dist., Inc. v. Hall , 897 A.2d 155, 157 (Del. 2006) (citing Johnson v. Chrysler, 213 A.2d 64, 66-67 (Del. 196 5)). 25 See Anchor Motor Freight v. Ciabattoni, 716 A .2d 15 4, 156 (Del. 19 98); Hudson State Farm Mut. Ins. Co., 569 A .2d 116 8, 1170 (Del. 199 0). 26 Standard Dist., Inc., 897 A.2d at 157. 27 General Motors Co. v. Guy, 1991 WL 1 9049 1, C.A . No. 90 A-JL-5 , at *3 (De l. Super. C t. Aug. 16 , 1991). 10 inadmissible.28 18. Finocchiaro relies on Delaware Uniform Rules of Evidence 702,29 703,30 and 705 31 to support his argument that the failure of the CCH report to either identify the toxicologists or technicians who performed the blood study, or indicate whether the analysis was performed in accordance with the procedures approved by the Forensics Laboratory Offices of the Chief Medical Examiner or the Delaware State Police Crime Laboratory renders the report inadmissible and any reference to it improper. 32 More over, acc ording to Fino cchiaro, the record is devoid of any evidence that shows that the bloo d sample was properly d elivered to the laboratory for testing. 19. Finocchiaro also relies on 10 Del. C. Section 4331(3) and 21 Del. C. Section 4177. Section 4331(3)33 requires each person in th e chain o f custod y to sign a statement containing a des cription o f the mate rial tested. F inocchia ro poin ts 28 Brief for Appellant at 5-6. Counsel for Finocchiaro objected to the police report, and the Board did not admit it into the rec ord. Co unsel also objected to Dr. H ameli=s testimony because the CCH report was not verified, but the B oard ad mitted D r. Ham eli=s references to the report during his testimony. Brief for Appellant at 5. 29 See D.R.E . Rule 70 2 (setting out the req uirements for testim ony by expert w itnesses). 30 See D.R.E . Rule 703 (discussing b ases of expert op inions). 31 See D.R.E . 705 (stating th e requireme nts for disclosure of fac ts or data und erlying expert op inions). 32 Brief for Appellant, at 5-6. 33 10 Del. C. ' 4331(3 ). 11 out there were no such statements offered in this case. Section 4177(h)(1)34 requires the foren sic toxico logist, for ensic che mist or sta te police fo rensic an alytic chemist who performed the test to sign the report. In this case, there was no such signatur e on the r eport. 20. Domin o s argues that Finocchiaro did not cite any case law concerning the chain of custody issue as applied to a proceeding before an administrative board. Domino s points to IAB Rule 14 (B), which provides: The rules of e vidence applicab le to the Superior Court of the State of Delaware shall be followed insofar as practicable; however, that evidence will be considered by the Board which, in its opinion, possesses any probative value commonly accepted by reaso nably prudent men in th e condu ct of their a ffairs. Th e Board may, in its discretion, disregard any of the customary rules of evidence and legal procedures so long as such disregard does not amount to an abuse of its discretion.35 The Board may admit any evidence that it believes has probative value.36 An Aabuse of discretion@ only occurs when the Board exceeds Athe bou nds of r eason in view of the circumstances and has ignored recognized rules of law or practice so as to produ ce injustice . 37 34 IAB Ru le 14(B). 36 Thomas v. Christiana Excavating 21 Del. C. ' 4177(h )(1). 35 Domino s relies on Id. 37 McD owell v. S tate, 1991 WL 35679, No. 88A-JN-3, at *2 (Del. Super. Ct. March 14, 1991) (citing Pitts v. White , 109 A .2d 786 , 788 (D el. 1954)). 12 Co., 38 where this court found that it was not error to admit V.A. Hospital Records at the hearing despite the lack of testimony from the hospital=s records custodian as to the records= accuracy. 21. The Court finds that the Board did not err when it admitted the CCH laboratory report. Under IAB Rule 14, the Board was not bound to follow the formal rules of evidence or legal procedures and it was reasonable to allow the report into evid ence. Th e laborato ry repor t was rele vant and the Boa rd could reasona bly find that th e report was reli able beca use, acco rding to Dr. H ameli, it was compiled by medical personnel in the usual manner at CCH. The Board gave due consideration to Finocchiaro=s objection to the report and ultimately concluded that the report was probative and reliable. Therefore, under IAB Rule 14(B), the Board proper ly exercise d its discre tion wh en it receiv ed the rep ort in evid ence. 22. Similarly, the Bo ard wa s within its author ity to allow Dr. H ameli to re ly upon the report in his testimony. IAB Rule 14(B) give s the Bo ard discr etion to allow his testimo ny and d ecide w hat weig ht to give that testimo ny. Dr. Hameli is a forensic medical expert and the laboratory report is the sort of data reasonably relied upon b y experts in [his] field . 39 38 Dr. Hameli gave his conclusion and Thomas v. Christiana Excavating Co., 1994 W L 7503 25, Civ.A . No. 94A -03-009, at *5 (Del. Sup er. Ct. Nov. 15 , 1994) (M em.Op .). 39 D.R.E. 703. 13 explained the basis of his findings. He was su bjected to cross examin ation. Thus, the Board=s decision to allow Dr. H ameli=s testimony was a sound exercise of discretion and free from legal error. 23. Finocchiaro=s second argument is that the Board=s decision is not supported by substantial evidence because Domino s failed to show that he was intoxicated or, alternatively, that intoxication caused the accident. Substantial evidence means Asuch relevant evidence that a reasonable mind might accept as adequate to supp ort a con clusion. 40 Substantial evidence is more than a mere scintilla yet less than a preponderance.41 For example, in an administrative hearing, the IAB Amay not base an award [or denial of an award] solely upon incompetent evidence,@ although Athe admission of incompetent evidence will not invalidate an award of compensation if there is other competent evidence to suppo rt it. 42 40 Standard Dist., Inc. v. Hall , 897 A.2d 155, 158 (Del. 2006) (citing Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981)). 41 Olney v. Cooch, 425 A .2d 610 , 614 (D el. 1981). 42 Schock Bros., Inc. v. Stacey, 1991 WL 113329, Civ. A. No. 90A-JA-4, at *2 (Del. Super. Ct. June 18, 1991) (citing General Chemical Division, ETC v. Fasano, 94 A.2 d 600 (D el. Super. C t. 1953)). 14 24. Finocc hiaro arg ues that D omino s must establish Abut for@ causation.43 He relies upon Stewart v. Oliver B. Cannon & Sons, Inc.,44 where this court stated that to prevail on a 19 Del. C. ' 2353( b) defen se, Athe emp loyer mu st clearly establish that actual intoxicatio n caused the accide nt. 45 Intoxication must be the Aactual, proximate cause of the accident@ not a Apassive@ cause that mere ly aggravated the injury. 46 25. Finocchiaro first argues that Domino s did n ot meet its burden because there is no evid ence that Finocchiaro was intoxicated other than the CCH laboratory report. Finocchiaro worked for hours in a small space performing tasks that required manua l dexterity and no co-worker testified that he appeared 43 Claimant-Below, Appellant=s Reply Brief on Appeal at 1. 44 Stewart v. Oliver B. Cannon & Son, Inc., 551 A .2d 81 8 (Del. S uper. C t. 1988) (finding that provisions of a drunk driving s tatute adopting a .10% BAC as a conclusive presumption of intoxication were not controlling in a Section 2 353(b) ca se involving a p ainter who fell off of sca ffolding). 45 Id. at 821. T he emplo yer meets its burd en when the Board is satisfied by the preponderance of the evidence that [the employee s] accident was a result of his intoxication even when other factors may have contributed to the accident. General Motors Corp. v. Edwards, 1998 WL 283392, No. 97A-01-005-NAB (Del. Super. Ct. Jan. 07, 1998) (citing Murphy v. UE&C Catalytic, Inc., 1995 WL 465194, Civ.A. No. 95A01-006 (Del. Super. Ct. July 11, 1995)) (Mem. Op. at 3) (instructing IAB to apply the proximate cause standard to determine cause of employee=s accident in a case where employee fell to his death from a screen guard while dod ging a swing ing sledgeha mmer). General M otors was issued after the case had been remanded to the Board to determine if intoxication was the prox imate cause of the accident. After a second remand, the Board found that the employer had not met its burden to show that intoxication was the proxim ate cause of the accident. The third Board decision was affirmed. See General Motors Corp. v. Edwards, 2000 WL 7 1018 1, No. 9 9A-1 0-10-0 10-N AB (D el. Sup er. Ct. A pril 27, 2000), aff=d, 765 A.2d 951 (Del. 200 0). 46 Wills v. Penn Dell Salvage, Inc., 274 A .2d 14 4 (Del. S uper. C t. 1971), aff d, 282 A.2d 612 (Del. 1971) (holding ' 2353(b) did not apply when employee was killed at his job site when he attempted to remove scrap wire under a car while intoxicated, because Ain ord er for se ction 2 353 (b) to ap ply, the employee=s intoxication must be an active prox imate c ause o f the in jury, not a passive condition which aggravates an inju ry otherwise created@). 15 intoxicated. Furthermore, Finocchiaro was not charged with DUI and there was no evidence of Finocchiaro=s level of impairment other than Dr. Hame li=s testimony. Moreover, Dr. H ameli cou ld not conclude that Finocchiaro=s alleged intoxication led to the accident. 47 Secon d, Fino cchiaro a rgues th at Dom ino s did not mee t its burden because, after all the evidence was in, the Boa rd was still left to spe culate about w hat really ca used the accident. 48 26. Domino s responds that Section 2353(b) applies because: (1) Finocchiaro was clearly intoxicated, with a BAC 59% over the legal limit; 49 (2) Dr. Hame li=s testimony established that Finocchiaro drank more than he admitted; (3) there is no other plausible cause of Finocchiaro=s accident because the road was a straight tw o-lane road; (4) Finocchiaro was familiar with the road; and (5) there was no evidence of distractions within the car itself.50 In sum, according to Domino s, the substantial evidence supports the Board s con clusion that Finocchiaro endangered himself and others on the road by willfully, intentionally, and deliberate ly driving while in toxicated and th at his intox ication w as a prox imate cause of the accide nt. 47 Brief for Appellant at 4. 48 Claimant-Below, Appellant=s Reply Brief on Appeal at 1. 49 Brief for Appellee at 7-8. 50 Id. at 9. 16 27. After re viewin g the reco rd, the C ourt find s that there is substantial evidence to support the Board=s decision that Domino s met its burden to show by a preponderance of the evidence that intoxication was the proximate cause of the accident. 28. In a Section 2353(b) case, the Board must apply Delaware s settled proxim ate cause stan dard to d etermine the cause of the em ployee=s accident. 51 In practical terms, the employer must show by a preponde rance of the evide nce that: (1) the employee was intoxicated; and (2) the employee=s intoxication was a Abut for@ cause of the accide nt whic h led to th e injury. 29. In Delaware, p roximate cause is Athat direct cause without which the accident would not have happened. 52 In other words, a proximate cause is one which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have 51 Duph ily v. Delawa re Elec. Co -op., Inc., 662 A.2d 821, 828 (Del. 1995) ( Delaware recognizes the traditional but for definition of pro ximate causa tion. ). See also Edwards, 1998 W L 2833 92, at *3 (reporting that Ait seems equally compelling to apply the >but for= definition of proxim ate cause to all preluding events which contributed to the accident when a ' 2353(b) defen se is raised in a work ers compensation case.@). 52 Culve r v. Ben nett, 588 A.2d 1094, 10 97 (Del. 1991) (citing Chudnofsky v. Edwards, 208 A.2d 516, 518 (Del. 1965 )). The D elaware S uprem e Cou rt has said that the la w of torts Afinds equal application in fixing the relationsh ip betw een an a cknow ledged industria l acciden t and its aftermath.@ Reese v. Hom e Budget Ctr. , 619 A.2d 907, 910 (Del. 1992) (rejecting use of the substantial contributing factor causation in determining if psychiatric expen ses stemmin g from an ind ustrial accident w ere compen sable). 17 occurre d. 53 Either direct or circumstantial evidence, or both, may be used by a fact-finder to determ ine the cau sal sequence of events. 54 To pro ve prox imate causation by circumstantial evidence, it is necessary that the conclusion of proxim ate causation be the only reasonable inference possible from the proven circums tances. 55 30. The Board considered Finocchiaro=s argument that there was no proof that intoxication caused the accident and found that Finocchiaro s reliance upon Stewart was misplaced because Stewart did not concern drunk driving. Therefore, unlike Stewart, the Board in this case considered Finocchiaro=s BAC to determine 53 Culver, 588 A.2d at 1097. The Board may not presume that intoxication was the but for cause of an accident if another abn ormal hazard existed a t the same time as the acciden t. When the facts have presented, in additio n to intoxication, a special source of hazard bearing upon the accident, courts have frequently, but by no means always; held th at intoxication w as not the prox imate cause. 2 Arthur La rson, Larson s Worker s Compensation Law §36.03 (2006). However, [t]he basic rule remain s that if there is no substantial eviden ce that the acciden t was cau sed by an y other facto r, comp ensation will be denied. Id. See also Harvey v. Allied Chemical Corp., 51 A.D.2d 1066 (N.Y. App. Div. 19 76) (find ing that if th ere is medical proof of intoxication and if, in a perfectly safe place, the employee falls and injures himself, it is clear that the injury results solely from intoxication.) 54 See Dixon v. Reid, 1991 WL 138375, Civ. A. No. 86C-NO-14, at *3 (Del. Super. Ct. July 03, 1991) (finding in a negligence action resulting from car accident that [a]s a general rule, the law makes no distinction between direct or circumstantial evidence, but simply requires the [factfinde r] find the facts in accordance with the preponderance of the evidence in the case, whether direct or circum stantial or both. ). Circumstantial evidence, expert testimony or common knowledge may provide a basis from which the causal sequence may be inferred in a particular case. P rosser and K eaton, The Law of Torts , § 41 at 27 0 (5 th Ed. 1984). 55 Suburban Prop ane Gas Corp. v. Papen , 245 A.2d 795, 798 (Del. 1968) (discussing a plaintiff s burde n in order to prove p roximate cau sation by circum stantial evidence in a negligence ac tion). 18 wheth er actual in toxication caused th e acciden t.56 31. The Board effectively found Abut for@ causation. Based on competent expert testimony, the Board found that Finocchiaro would have been intoxicated and severely im paired in judgm ent, observation, attention, concentration, motor coordination, reaction and response time, visual acuity and depth perception . 57 There was no other cause for the accident apparent in the evidence. Further, Finocchiaro s testimony lacked credibility. For these reasons, the Board found that Finocc hiaro s in toxication caused th e acciden t.58 32. Even if Finocchiaro could show that the Board did not find but for causation, the outcome wou ld be the same because there is substantial evidence 56 Stewart found that BAC was not a controlling factor in a workmen=s compensation case which did not involve drunk d riving. Stewart, 551 A.2d at 820 -22 (finding that employer had not met its burden to show that employe e was into xicated because eyewitnesses did not see employee drink on the job and he did not appear intox icated prior to the acc ident). 57 IAB Decision, at 7-9. 58 The B oard also cited the p ublic po licy reasons b ehind Delaware s drunk driving statute as a basis for finding that Finocchiaro s intoxication caused the accident. IAB Decision at 10. However, the public policy supporting drunk drivin g statutes is irrelevant to finding causation in workman s compensation cases. The public policy beh ind the w orkers co mpen sation statu te is to provide prompt payment of benefits without regard to fault, and to relieve em ployers and em ployees of the bu rden of civil litigation. Cha mpla in Cab le Corp. v. Employers Mut. Liab. Ins. Co., 479 A .2d 835 , 840 (D el. 1984). The ultima te soc ial phi losop hy behind nonfault compensation liability is the desirability of providing, in the most efficient, most dignified, and most certain form, financial and medical benefits which an enlightened community would feel obligated to provide in any case . . . . 1 Arthur Larson, Larson s Wo rker s Compensation Law § 1.03[2 ] (2006). Howev er, the Delaware legislature has cho sen not to extend that ben efit to indiv iduals w hose be havior fits Section 2353(b). Section 2353(b) is a statement of public policy, clear and unequivocal on its face, creating a comp lete defen se in cases involving intoxicated employees. See Hopper v. F.W. Corridori Roofing Co., 305 A .2d 309 , 311 (D el. 1973) ( There is no provision for application of the doctrine of estoppel or for any other exception to the statutory mandate. ). The nature of the employee s conduct is not dispositive; Section 2353(b ) applies whe ther the emp loyee was driving a car or folding pizz a boxes. 19 that Finocchiaro s intoxication was the but for cause of th e acciden t.59 There is medical evidence that both alcohol and opiates were in Finocchiaro s system the night of the accident. Dr. Hameli s testimony established that Finocchia ro wo uld have been impair ed at the tim e of the ac cident. T he Boa rd prop erly exerc ised its sole authority to determine that Finocchiaro s testimony lacked credibility. There is no evidence in the record that there was any other intervening cause or abnormal risk factor tha t might h ave caus ed the accident. T herefor e, it is reason able to conclude that Finocchiaro s intoxication probably caused the accident. Looking at the record as a whole, substantial evidence supports that Finocchiaro was intoxicate d and th at intoxica tion wa s the pro ximate ca use of th e acciden t. 33. There was also substantial evidence to support the Board s finding that Finocchiaro acted deliberately and recklessly.60 Finocchiaro admitted that he was taking Tyleno l 3 with o piates, and that he ha d been d rinking immed iately prior to reporting to wor k as a deliv ery drive r. Dr. H ameli testifie d that op iates would amplify the impairing effects of alcohol, increasing the risk that someone ingesting both of those substances would have a greater chance o f getting in to a car acc ident. Accordingly, the Board had substantial evidence to support its finding that 59 IAB Decision at 9-11. 60 Id. at 11-12. 20 Dom ino s met its burden to show that Finocchiaro acted deliberately and recklessly by driving when he was under the influe nce of alc ohol an d drug s. The B oard did not abuse its discretion, and the Court will not disturb its findings. 37. Based on the foregoing, the decision of the Bo ard den ying ben efits to Finocchiaro is AFFIRMED. IT IS SO ORDERED. ________________________ Judge Joseph R. Slights, III Original to Prothonotary cc: Kenneth F. Carmine, Esquire Eric D. Boyle, Esquire 21

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