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Warner v. Vanco Mfg.

April 8, 1997

JEFFREY WARNER, PETITIONER-RESPONDENT,
v.
VANCO MANUFACTURING, INC., RESPONDENT-APPELLANT.



On appeal from Division of Workers' Compensation.

Approved for Publication April 8, 1997. As Corrected May 21, 1997.

Before Judges Havey, Kestin and Eichen. The opinion of the court was delivered by Eichen, J.A.D.

The opinion of the court was delivered by: Eichen

The opinion of the court was delivered by

EICHEN, J.A.D.

In this workers' compensation case, respondent Vanco Manufacturing, Inc., appeals from a judgment awarding medical and temporary benefits to petitioner Jeffrey Warner. We affirm.

Petitioner was injured on July 28, 1994 when he fell from a narrow, eighteen-foot high scaffold in the course of assembling a metal roof on a tractor trailer. Respondent sought to resist petitioner's claim on the statutory ground that intoxication was the natural and proximate cause of the accident. N.J.S.A. 34:15-7. The Judge of compensation concluded that respondent failed to demonstrate that petitioner's intoxication was the sole cause of the accident and his injuries and entered judgment in favor of petitioner.

The relevant facts follow. The scaffold on which petitioner was working consisted of a bridge supported by "two sides." The bridge spanned the tractor trailer as it rested in the assembly area at the workplace, allowing workers to "go from one side to the other." The record reflects that the walkway of the bridge was only two feet wide and cluttered with work materials. To position the bridge on the side supports so that a trailer could properly fit in the assembly area, the bridge had to be fastened to a crane which then would move the assembly apparatus. On the day of the accident, petitioner reported to work at 7:00 a.m. after having spent the prior evening and the early morning hours of July 28, 1994 drinking vodka. During that period, petitioner consumed one-half gallon of alcohol. Additionally, on the day of the accident, petitioner drank two beers at his 10:15 a.m. morning break. The accident happened at about 1:30 p.m.

At the compensation hearing, petitioner testified that he fell from the scaffold while he was attempting to fasten a crane hook to the bridge in order to move the assembly apparatus. Apparently, the bridge was missing an "eye hook" to which the crane could be fastened. Petitioner described the occurrence as follows:

I hooked the bridge up to the crane, which didn't have an eye hook in it, which it should have.

I went to kick it into place because it wouldn't set right. And when I kicked it, the crane slid -- the hook on the crane slid and I just fell off.

[Again,] ... I hooked it up to the crane. I took it all the way down. And, like I said, when I kicked it, to get it into place because it had these like ... two ... lips on each side and to get it into place, I had to kick it. When I kicked it, the crane slid and I just ... fell right off.

During the hearing, petitioner's co-worker testified that the scaffolding area was very unstable, that another individual had previously fallen from the scaffold, and that he was reluctant to even go up on the bridge. In addition, petitioner's co-workers testified that petitioner had not acted "unusual" on the date of the accident, stating that he "looked and acted normally." Respondent offered no proof in opposition to that testimony.

Respondent grounded its case on the intoxication defense, N.J.S.A. 34:15-7. Dr. Richard Saferstein, an expert in forensic science and blood alcohol analysis, relying on extrapolation evidence, testified that petitioner's blood alcohol reading must have been .29% at the time of the fall, and that a person with such a high reading "could not have properly performed any basic task on [the scaffolding] due to the ... extremely high alcohol intoxication." Therefore, Dr. Saferstein concluded that petitioner's intoxication "was the sole and proximate cause of the accident." Dr. Saferstein stated, however, that he was primarily concerned with petitioner's consumption of alcohol, and "not the details of how the accident ...


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