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JAMES R. SHERMAN v. WORKMEN'S COMPENSATION APPEAL BOARD (NATIONAL ADVANCE SYSTEMS CORP.) (05/08/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 8, 1987.

JAMES R. SHERMAN, JR., DECEASED, SANDRA SHERMAN DIBIASE, WIDOW, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (NATIONAL ADVANCE SYSTEMS CORP.), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in the case of James R. Sherman, Jr., Dec'd, Sandra Sherman DiBiase, widow v. National Advance Systems Corp., No. A-84143.

COUNSEL

Alexander H. Lindsay, Jr., Lindsay, Kemper & Lutz, P.C., for petitioner.

Raymond F. Keisling, with him, James Schmitt, Ronald Ganassi, Will, Keisling, Ganassi & McCloskey, for respondent.

Judges MacPhail and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 106 Pa. Commw. Page 58]

Sandra Sherman DiBiase (Claimant) petitions for our review of an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision denying Claimant's Fatal Claim Petition. We affirm.

Claimant's husband (decedent) was fatally injured on October 11, 1979 when his Triumph sports car, which the referee found he was operating at a high rate of speed, collided with a bridge abutment. At the time of his death, decedent was employed by National Advance Systems Corporation (Employer).

As found by the referee, decedent, immediately prior to his fatal accident, had been at a retirement party for an employee of Bessemer and Lake Erie Railroad (B& LE), a large customer of Employer. Dr. Winek, a

[ 106 Pa. Commw. Page 59]

    toxicologist, testified that based on decedent's blood alcohol level*fn1 which was .14%, decedent was significantly impaired for purposes of operating an automobile safely. He further testified that in his opinion the accident was directly related to decedent's consumption of alcohol.*fn2 Based on this testimony and the testimony of witnesses who observed decedent's operation of his vehicle immediately prior to the accident, the referee found that decedent was driving while intoxicated and concluded that decedent's intoxication caused the fatal auto accident. He further found that decedent was not in the course of his employment at the time of the fatal accident.

Claimant argues here that there was no substantial evidence to support the referee's conclusion either that decedent's driving while intoxicated proximately caused his death or that decedent was not in the course of his employment at the time of his death. After a very thorough review of the record, we are constrained to affirm the Board's decision.

[ 106 Pa. Commw. Page 60]

Section 301(a) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 431, bars recovery where death is caused by the employee's violation of law. Claimant argues here that although decedent had a high blood alcohol level, Employer has not shown that his intoxication proximately caused his accident and cites Oakes v. Workmen's Compensation Appeal Board (Pennsylvania Electric Co.), 79 Pa. Commonwealth Ct. 454, 469 A.2d 723 (1984) (stating that an employee's violation of law must be shown to be the proximate cause of his death to bar recovery).

Oakes is distinguishable on its facts. In Oakes, the referee specifically found that although the decedent was severely intoxicated, he did not swerve to avoid an oncoming automobile because had he done so he would have likely struck a pedestrian. The referee further found that "there was no showing that the Decedent's intoxication caused the accident." Id. at 458, 469 A.2d at 726 (emphasis deleted). In the case sub judice, the referee found that the decedent was driving while intoxicated and in violation of law. The referee concluded that decedent's violation of law caused his death. Contrary to Claimant's argument, there is substantial evidence in the record to support this critical finding.

Since we conclude that recovery is barred by Section 301(a) of the Act, we need not address Claimant's contention that decedent was in the course of his employment at the time of the accident.

The Board's order is affirmed.

Order

The order of the Workmen's Compensation Appeal Board in the above-captioned matter is affirmed.

Disposition

Affirmed.


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