European Marble Co. v. Robinson

885 So. 2d 502, 2004 Fla. App. LEXIS 16621, 2004 WL 2481360
CourtDistrict Court of Appeal of Florida
DecidedNovember 5, 2004
DocketNo. 1D03-4655
StatusPublished
Cited by3 cases

This text of 885 So. 2d 502 (European Marble Co. v. Robinson) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
European Marble Co. v. Robinson, 885 So. 2d 502, 2004 Fla. App. LEXIS 16621, 2004 WL 2481360 (Fla. Ct. App. 2004).

Opinion

PER CURIAM.

The emplóyer/carrier (E/C) appeals an order of the judge of compensation claims (JCC) finding that Thomas Robinson sustained a compensable work-related injury. In affirming the JCC’s finding that the work-related injury arose out of and in the course and scope of Mr. Robinson’s employment, we also approve her ruling that the E/C was not entitled to a presumption that Mr. Robinson’s “injury was occasioned primarily by [his] intoxication,” § 440.09(7)(b), Fla. Stat. (2002), and uphold her decision that the E/C “has not shown by the greater weight of the evidence that claimant’s injury was caused primarily by the use of ... alcohol.”

On November 13, 2002, Mr. Robinson sustained life-threatening injuries to the left side of his head while working at European Marble Company. At the time of his accident, Mr. Robinson was in the in[504]*504ventory yard emptying crates that were partially filled with marble tile. The crates were stacked on top of each other, up to three crates high, and Mr. Robinson was standing inside the highest crate. To gain access to the top level of crates, which was between nine and twelve feet high, Mr. Robinson either climbed the crates or used a forklift. The crates sat on cement or dirt packed with a layer of shell stone, or on concrete.

Mr. Robinson has no memory of the day he was injured, and while no one at his place of employment witnessed the accident, several European Marble employees testified about events occurring before and after the accident. Michael Bliss, Mr. Robinson’s supervisor, explained that just before the accident Mr. Robinson was standing in a wooden crate that was stacked on top of two other wooden crates. About fifteen minutes after seeing Mr. Robinson working in the crate, Mr. Bliss returned to Mr. Robinson’s area and saw him “sitting up [on the concrete] holding his back” and noticed that the crate Mr. Robinson had been working in had fallen. According to Mr. Bliss, Mr. Robinson said that he did not know what happened or how the crate fell, but that he did not fall out of the crate. Mr. Robinson complained of a back spasm and a headache. Joseph Lubrano, the president of European Marble, noted that after the accident Mr. Robinson appeared to be responding lucidly when he explained that he had injured his back. Mr. Bliss explained that Mr. Robinson stood up and appeared to be “trying to get his bearings,” but had to sit back down. Mr. Bliss left the area to help another employee and when he returned Mr. Robinson was having a seizure.

At the emergency room, Mr. Robinson was unable to provide information about his injuries because he was “intubated and pharmacologically paralyzed.” After a CT scan, Dr. Ryan S. Glasser, a board-certified neurosurgeon, “performed emergent craniotomy and evacuation of an epidural hematoma and repair of a skull fracture.” In Dr. Glasser’s opinion, Mr. Robinson’s injury was acute and traumatic and consistent with either a blow to the head or a fall from nine to twelve feet onto a concrete surface. Dr. Glasser explained that in light of the sequence of Mr. Robinson’s symptoms — a lucid interval, followed by a seizure — it is unlikely that Mr. Robinson had a seizure in the crate and then fell. He felt that the most logical sequence of events was that Mr. Robinson “had a fall from 10 to 12 feet, ha[d] a blow to his head, recovered] and [wa]s stunned a little bit and then as the hematoma enlarge[d] ha[d] a seizure and bec[a]me[] unconscious.” According to Dr. Glasser, the emergency room record indicated that Mr. Robinson’s blood-alcohol level was 0.053 percent at about 2:50 p.m. The E/C presented evidence through the testimony of Paul L. Doering, a registered pharmacist and pharmacy professor, that Mr. Robinson’s blood-alcohol level must have exceeded .08 percent at the time he was injured.

The medical technologist explained that because Mr. Robinson's blood was drawn for medical (as opposed to legal) purposes his blood sample was not “put in a sealed bag that [is] initialed by the patient, and ... signed every time [it] change[d] hands, ... [or kept] under lock and key when it’s not being processed.” She was uncertain whether Mr. Robinson’s blood was drawn at 2:50 p.m. or whether the test was run at that time and she did not know which testing methodology was used. She also did not know whether the hospital laboratory was licensed and approved by the Agency for Healthcare Administration (AHCA).

The E/C denied compensability and defended on the ground that Mr. Robinson’s [505]*505injury was occasioned primarily by the influence of alcohol. See § 440.09(3), Fla. Stat. (2002) (“Compensation is not payable if the injury was occasioned primarily by the intoxication of the employee; by the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician”). The judge of compensation claims relied on Temporary Labor Source v. E.H., 765 So.2d 757 (Fla. 1st DCA 2000), to determine that the E/C was “not entitled to a presumption that the injury was occasioned primarily by the influence of a drug or alcohol.” We affirm that conclusion because “this record demonstrates a lack of compliance with” the procedures for testing and maintaining blood alcohol samples set forth in the Florida Administrative Code. Id. at 759; see Fla. Admin. Code ch. 59A-24.

Under section 440.09(7)(b), Florida Statutes (2002), a “presum[ption] that the injury was occasioned primarily by the intoxication of, or by the influence of the drug upon, the employee” arises “[i]f the employee has, at the time of the injury, a blood alcohol level equal to or greater than [0.08 grams of alcohol per 100 milliliters of blood], or if the employee has a positive confirmation of a drug as defined in this act.” In Temporary Labor Source, we affirmed a ruling of the judge of compensation claims that the E/C were not entitled to the presumption that claimant’s injury was occasioned primarily by the influence of cocaine upon the claimant. See 765 So.2d at 759. In affirming, we agreed with the “JCC’s ruling that, while a drug test performed for medical purposes may be admissible to support an intoxication defense under section 440.09(3), the presumption set out in section 440.09(7)(b) does not arise as the result of a positive confirmation drug test using a medically-drawn sample unless the Florida Administrative Code rules required by section 440.09(7)(d) are followed.” Id. Section 440.09(7)(d), Florida Statutes (2002) requires AHCA to “provide by rule for the authorization and regulation of drug-testing policies, procedures, and methods.”

On appeal, the E/C argue that compliance with the Florida Administrative Code rules mentioned in Temporary Labor Source is not required where, as here, the E/C are attempting to prove that the injury was occasioned primarily by claimant’s alcohol intoxication, rather than by the influence of another drug, as in Temporary Labor Source. Thus, according to the E/C, “[a]lcohol intoxication, while in the same statute, does not have the same exact requirements.... [If] Claimant’s blood-alcohol level [at the time of the accident] was at least a .08[] then the statutory presumption exists.”

We disagree with the E/C’s contention and hold that the Florida Administrative Code rules required by section 440.09(7)(d) also apply to blood-alcohol tests.- In Temporary Labor Source, we explained the history of AHCA’s implementation of the mandate in section 440.09(7)(d):

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Cite This Page — Counsel Stack

Bluebook (online)
885 So. 2d 502, 2004 Fla. App. LEXIS 16621, 2004 WL 2481360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/european-marble-co-v-robinson-fladistctapp-2004.