{ "id": 6138553, "name": "SOUTHWEST PIPE & SUPPLY and INSURANCE COMPANY OF NORTH AMERICA v. Lana HOOVER, Widow of David A. HOOVER, deceased, Employee", "name_abbreviation": "Southwest Pipe & Supply v. Hoover", "decision_date": "1984-12-12", "docket_number": "CA 84-279", "first_page": "144", "last_page": "148", "citations": [ { "type": "official", "cite": "13 Ark. App. 144" }, { "type": "parallel", "cite": "680 S.W.2d 723" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "4 Ark. App. 34", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136661 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark-app/4/0034-01" ] }, { "cite": "265 Ark. 489", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1664891 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/265/0489-01" ] }, { "cite": "267 Ark. 539", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1719846 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/267/0539-01" ] } ], "analysis": { "cardinality": 453, "char_count": 8513, "ocr_confidence": 0.848, "pagerank": { "raw": 8.203483792463421e-08, "percentile": 0.4762327842279608 }, "sha256": "7c36252719c0b31b2d8ab59b315970c62389d553a76ce609df015514738af6fd", "simhash": "1:a4415ba76b0922ba", "word_count": 1364 }, "last_updated": "2023-07-14T22:52:11.493423+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Cracraft, C.J. and Corbin, J., agree." ], "parties": [ "SOUTHWEST PIPE & SUPPLY and INSURANCE COMPANY OF NORTH AMERICA v. Lana HOOVER, Widow of David A. HOOVER, deceased, Employee" ], "opinions": [ { "text": "Lawson Cloninger, Judge.\nThis is an appeal from an award of dependency benefits under the Workers\u2019 Compensation Act to appellee Lana Hoover, for herself and her two minor children. Appellee is the widow of David Hoover who was killed in an automobile accident while in the scope and course of his employment with appellant, Southwest Pipe 8c Supply. We affirm the holding of the Commission.\nThe evidence established that on May 25, 1982, David Hoover was eastbound when his automobile collided head-on with a westbound tractor and trailer driven by Harry Thompson. An insurance adjuster and a state trooper investigated the accident, and their testimony indicated that Hoover\u2019s automobile was probably across the center line of the highway and that the impact occurred in the westbound lane. Thompson also testified that Hoover was in the wrong lane. However, Lloyd Franklin, the state trooper who worked the accident, testified that one of the contributing circumstances to the collision was that Thompson was driving too fast for the existing conditions.\nHoover\u2019s body was taken to a local hospital where, at the request of Trooper Franklin, a blood sample was drawn from Hoover\u2019s heart. The medical technician who drew the blood testified that he put the blood sample in a vacutainer tube, labeled it, and put tape over the top with his signature on the tape and the glass combined. Officer James Singleton testified that he took the tube from the medical technician and put it in the refrigerator at the Chicot County Jail. Trooper Franklin testified that he took the tube out of the refrigerator and mailed it to the Arkansas Department of Health. Peter Sammartino, a chemist with the Health Department, testified that he received the tube in the mail and ran a blood alcohol test on its contents. His test results showed that the sample had a .11% blood alcohol content. However, Sammartino also testified that he did not recall seeing any tape over the top of the tube and that \u201cI don\u2019t recall specifically, but I\u2019m pretty sure it wasn\u2019t there, because we would have saved it.\u201d\nArk. Stat. Ann. \u00a7 81-1305 (Repl. 1976) provides in pertinent part that \u201cthere shall be no liability for compensation under [the Workers\u2019 Compensation Act] where the injury or death from injury was substantially occasioned by intoxication of the injured employee. ... .\u201d At the hearing before the Administrative Law Judge, the appellant offered in evidence the results of the blood alcohol test which purported to establish that at the time of the accident, David Hoover had an alcohol blood level of. 11%, which, under the statute in effect at the time of the accident, was .01% over the percentage of alcohol that was presumed to show intoxication. Ark. Stat. Arm. \u00a7 75-1031.1(A)(3) (Repl. 1979) (amended 1983). The Administrative Law Judge found that Hoover was intoxicated based on the results of the blood alcohol test, but he awarded benefits because he found that Hoover\u2019s intoxication did not \u201csubstantially occasion\u201d his death.\nThe Workers\u2019 Compensation Commission agreed with the Administrative Law Judge\u2019s award of benefits but disagreed with his finding that Hoover was intoxicated. The Commission stated that the unexplained absence of the sealing tape with the technician\u2019s signature raised \u201cserious questions regarding the accuracy, reliability, and authenticity of the blood alcohol test\u201d and so \u201cthe results should not have been admitted into evidence or should be accorded little weight. \u2019 \u2019 The Commission went on to affirm and adopt the Administrative Law Judge\u2019s finding that the appellants failed to prove by a preponderance of the evidence that Hoover\u2019s injury and death were substantially occasioned by intoxication.\nOn appeal, appellant\u2019s first argument is that the Commission erred in finding that the blood alcohol test results should not have been admitted into evidence or should be accorded little weight. Appellant cites St. Paul Insurance Co. v. Touzin, 267 Ark. 539, 592 S.W.2d 447 (1980), where the Arkansas Supreme Court held that the Commission correctly admitted a similar blood test into evidence. In that case, the Arkansas Court of Appeals reversed the Commission, finding that the test was inadmissible because there had been no affirmative showing of strict compliance with Department of Health regulations for taking blood alcohol tests. The Supreme Court, in reversing the Court of Appeals, pointed out that \u201cthe Commission is not bound by technical rules of evidence or procedure, but may \u2018conduct the hearing in a manner as will best ascertain the rights of the parties.\u2019 \u201d Id. at 449 [citing Ark. Stat. Ann. \u00a7 81-1327 (Repl. 1976)]. The court held that the Commission had superior expertise in weighing the testimony and should be left to determine the probative value of proof that might not be admissible in a court of law. In the case at bar, the appellant argues that the Commission should have allowed the blood test into evidence because of its probative value and because the Commission is not bound by technical rules of evidence.\nAlthough the court allowed the blood test into evidence in the Touzin case, it did so on the underlying premise that the Commission has discretion to determine admissibility of evidence in a manner that best ascertains the rights of the parties. In Touzin, the Commission allowed the test into evidence but it also received testimony that the claimant had smelled of alcohol and had several empty beer cans with him at the time of his death. In the instant case, the Commission received no other testimony which might lead to the conclusion that Hoover was intoxicated when he had the accident. More importantly,. there was evidence that the only item tending to show Hoover\u2019s intoxication had been tampered with. There was substantial evidence to support the conclusion of the Commission that the blood test was not reliable evidence.\nThe Commission has broad discretion with reference to admission of evidence and we will not reverse absent a showing of abuse of that discretion. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). Here, we find no abuse of the Commission\u2019s discretion. We believe that the Commission correctly excluded or limited the value of the blood alcohol test.\nAppellant\u2019s second argument is that the Commission did not address the issue of whether Hoover\u2019s death was substantially occasioned by intoxication except in dictim; therefore, this court should remand for the Commission to consider this issue. We disagree. The Commission stated in its opinion: \u201c[W]e affirm and adopt the Administrative Law Judge\u2019s opinion insofar as it holds that respondents have failed to prove by a preponderance of the evidence that claimant\u2019s injury was substantially occasioned by intoxication.\u201d Clearly, the Commission made a finding that appellant failed to prove that Hoover\u2019s intoxication substantially caused his injury.\nAppellant\u2019s final argument is that the Commission\u2019s finding is not supported by substantial evidence. On appeal, we review the evidence in the light most favorable to the findings of the Commission and we give the testimony its strongest probative value in favor of the order of the Commission. Davis v. C & M Tractor Co., 4 Ark. App. 34, 627 S.W.2d 561 (1982). Under this standard, we find that there was substantial evidence to support the Commission\u2019s finding that appellant failed to prove Hoover\u2019s injury was substantially occasioned by intoxication. We repeat that the only evidence of intoxication was the blood alcohol test which was of questionable reliability. Furthermore, there was testimony that Hoover was probably not intoxicated. Two of his acquaintances testified that Hoover was with them during the afternoon and early evening and that he did not smell of alcohol or appear to be under the influence of alcohol. They both testified that they did not see him drink anything. Appellee testified that she had never seen her husband drunk. There was substantial evidence to support the Commission\u2019s conclusion that appellant did not prove that Hoover\u2019s intoxication substantially occasioned his death.\nAffirmed.\nCracraft, C.J. and Corbin, J., agree.", "type": "majority", "author": "Lawson Cloninger, Judge." } ], "attorneys": [ "Shackleford, Shackleford & Phillips, P.A., for appellants.", "Holloway ix Bridewell, for appellee." ], "corrections": "", "head_matter": "SOUTHWEST PIPE & SUPPLY and INSURANCE COMPANY OF NORTH AMERICA v. Lana HOOVER, Widow of David A. HOOVER, deceased, Employee\nCA 84-279\n680 S.W.2d 723\nCourt of Appeals of Arkansas Division I\nOpinion delivered December 12, 1984\nShackleford, Shackleford & Phillips, P.A., for appellants.\nHolloway ix Bridewell, for appellee." }, "file_name": "0144-01", "first_page_order": 164, "last_page_order": 168 }