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ERVIN W. CAREY v. WORKMEN'S COMPENSATION APPEAL BOARD (GENERAL ELECTRIC COMPANY AND ELECTRIC MUTUAL LIABILITY INSURANCE COMPANY) (02/10/83)

decided: February 10, 1983.

ERVIN W. CAREY, SR., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (GENERAL ELECTRIC COMPANY AND ELECTRIC MUTUAL LIABILITY INSURANCE COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Ervin W. Carey, Sr. v. General Electric Company, No. A-80195.

COUNSEL

Gary V. Skiba, Colussi, Yochim, Skiba & Vogel, for petitioner.

Howard N. Plate, Plate, Shapira, Hutzelman, Berlin & May, for respondents.

President Judge Crumlish, Jr. and Judges Williams, Jr. and Doyle, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 72 Pa. Commw. Page 11]

The Workmen's Compensation Appeal Board, by order, denied Ervin Carey benefits. He appeals. We affirm.

Carey, a General Electric truck driver, claimed benefits for injuries sustained in a train crossing collision. Benefits were denied, applying Section 301(a) of The Pennsylvania Workmen's Compensation Act,*fn1 which provides in pertinent part:

Every employer shall be liable for compensation for personal injury to, or for the death of such employe, by an injury in the course of his employment. . . . Provided, That no compensation

[ 72 Pa. Commw. Page 12]

    shall be paid when the injury or death is intentionally self inflicted, or is caused by the employe's violation of law, but the burden of proof of such fact shall be upon the employer. . . .

Three witnesses testified that Carey, in disregard of a barricade and flashing red lights, drove across the tracks and in so doing was struck. A blood test taken approximately one and one-half hours after the accident showed his blood alcohol level at 0.149%.

Carey categorically denied drinking on the day of the accident, but failed to explain his blood alcohol level. His only witness was a notary public with whom he had done business approximately forty-five minutes before the accident.*fn2 She testified that she observed no signs of drunkenness, i.e., staggering, slurring of speech, or the odor of alcohol on his breath.

The referee concluded that Carey's injury was caused by his intoxication, a violation of law which barred him from benefits.*fn3 His finding was based on his conclusion that Carey's blood level was at least ...


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