
    ORLANDO WASTE PAPER COMPANY and Johns Eastern Company, Appellants, v. Bobby MEADOWS (Deceased), Cathy Meadows (Wife), and Bobby Meadows, III (Son), Appellees.
    No. AW-82.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1984.
    Rehearing Denied Jan. 3, 1985.
    Robert C. Cooper and Robert A. Donahue of Cooper, Rissman, Weisberg & Jeffery, Orlando, for appellants.
    James M. Magee of Neduchal & Magee, Orlando, for appellees.
   THOMPSON, Judge.

The employer/carrier (E/C) appeal an order awarding death benefits to appellees, the wife and son of the deceased employee. The deputy commissioner (deputy) found: (1) that despite a blood alcohol level of .149%, intoxication was not the primary cause of the accident which resulted in the employee’s death, and (2) that the presumption created by § 440.09(3), Fla.Stat. that the employee’s death was occasioned primarily by his intoxication was successfully rebutted by appellees. Appellants urge that the deputy erred in awarding death benefits as there was no competent substantial evidence to support the finding that the statutory presumption was properly rebutted. We agree and reverse the award.

Bobby Meadows was killed October 7, 1982 when the fork lift he was driving in the course of his employment went off the edge of a loading dock, pinning him beneath it and fracturing his skull. Meadows had driven the fork lift up a ramp to set a bale of waste paper on the loading dock. He then backed up his fork lift to turn and go back down the ramp. For no apparent reason, rather than turning, he drove backwards off the edge of the loading dock.

A fellow employee testified that on the morning of the day of the accident, Meadows and he bought three beers each, and drank them before noon. At lunch Meadows told him he was going to get a half-pint of gin, and later that afternoon Meadows shared gin and grapefruit juice mixed in a gin bottle with him. Meadows and the employee had drunk together on the job before, and Meadows had been reprimanded approximately five months prior to the accident for bringing beer onto the premises.

Two witnesses who observed Meadows briefly before the accident occurred stated that he did not appear intoxicated. However, the employee who had shared the beer and gin with Meadows earlier said that shortly before the accident he could tell Meadows had been drinking. A blood alcohol toxicology study performed as part of the autopsy showed Meadows’ blood alcohol level to be .149% at the time of his death. The E/C controverted the claim* filed on behalf of Meadows’ widow and child on the ground that the blood alcohol level of the decedent should vitiate the claim.

Section 440.09(3), Florida Statutes (1979), provides in part:

If there was at the time of the injury 0.10 percent or more by weight of alcohol in the employee’s blood, it shall be presumed, in the absence of substantial evidence to the contrary, that the injury was occasioned primarily by the intoxication of the employee.

The only evidence presented by appellees to rebut this presumption was the testimony of two witnesses, who observed Meadows only briefly, that he did not appear intoxicated. Meadows’ widow also testified that he could “hold his liquor.” The deputy found that Meadows was intoxicated, but went on to find that appellees’ evidence had successfully rebutted the presumption raised by the statute. We cannot agree.

There was undisputed testimony that on the day of the accident Meadows had been drinking. There was also testimony by a co-worker that he could tell Meadows had been drinking, that he seemed “high,” and that his eyes looked “glossy.” Two witnesses who drove the fork lift prior to the accident stated that there was nothing wrong with the brakes or steering. A private investigator who examined the fork lift shortly after the accident on behalf of the appellees found nothing wrong with it. An OSHA investigator examined the site of the accident, but did not issue a citation.

The appellees did not prove any cause of the accident separate and independent of the employee’s intoxication as in City of Tampa v. Green, 390 So.2d 1220 (Fla. 1st DCA 1980), nor did they show that the accident would have occurred regardless of the employee’s intoxication as in R.P. Hewitt & Associates of Florida v. Murnighan, 382 So.2d 353 (Fla. 1st DCA 1980). The evidence required to rebut the presumption is not limited to these two particular types, but it is clear that a mere conclusion, which was controverted, that the employee did not appear intoxicated is not the type of “substantial evidence to the contrary” required by the statute. Similarly, testimony that the employee could hold his liquor falls short of being substantial evidence that the injury was not primarily occasioned by the employee’s intoxication.

Appellees challenge the deputy’s admission of the results of the blood alcohol test. This alleged error was not properly raised by cross-appeal. Even if this issue had been properly raised, the totality of the circumstances here would not demonstrate sufficient lack of trustworthiness to warrant reversal of the ruling of admissibility. It is within the deputy’s discretion to determine the reliability of the test. City of Tampa v. Green, 390 So.2d at 1221. In the present case the depositions of the doctor who performed the autopsy and of the toxicologist who performed the test were in evidence, as were the autopsy report, narrative summary, certificate of death, and toxicological analysis. The testimony in the depositions reveals that the doctor and toxicologist were occasionally unable to recall specific details about the taking and testing of the- blood samples, but the weight of the testimony and documentary evidence does not demonstrate that the deputy incorrectly assessed it as being reliable.

REVERSED.

BOOTH, J., concurs.

SMITH, J., concurs in part & dissents in part.

SMITH, Judge,

concurring in part and dissenting in part:

I agree with the majority’s disposition of the issue concerning admission of the results of the blood alcohol test. Having said that, however, I strongly disagree with the majority’s conclusion that the deputy commissioner erred in finding that the death of Bobby Meadows was not caused primarily by his intoxication. Competent, substantial evidence supports the deputy commissioner’s conclusion on this issue, and should mandate our affirmance of his order.

It is important to keep in mind the appropriate standard for our appellate review of a case such as this. It is a truism in workers’ compensation law, but one which bears repearing nonetheless, that our only concern is whether a deputy commissioner’s findings of fact are supported by competent, substantial evidence. Crowell v. Messana Contractors, 180 So.2d 329 (Fla.1965). The question of whether we, as a reviewing court, would have reached the same conclusion as the deputy commissioner “is not determinative of our inquiry” as to the sufficiency of the evidence supporting the deputy’s findings. Overholser Construction Co. v. Porter, 173 So.2d 697, 699 (Fla.1964). Rather, we may not reject these findings absent a clear showing of error. Tampa Bay Moving Systems, Inc. v. Frederick, 433 So.2d 628 (Fla. 1st DCA 1983). In examining these findings, we must view the facts in the light most favorable to the prevailing parties below, in this case, the claimant’s surviving widow and dependent child. B & B Cash Grocery Stores v. Wortman, 431 So.2d 171 (Fla. 1st DCA 1983), pet. for rev. den., 440 So.2d 351 (Fla.1983). Finally, the deputy’s factual findings, and the inferences derivable therefrom, must be upheld if permitted by any reasonable view of the evidence. Orange City Water Co. v. Barkley, 432 So.2d 698 (Fla. 1st DCA 1983).

Contrary to the majority’s opinion, the claimant’s rebuttal evidence was not confined to the “mere conclusion” by two witnesses that Meadows did not appear intoxicated, together with testimony that Meadows could “hold his liquor.” It is clear from the deputy’s order, as well as from the totality of the evidence adduced below, that the deputy commissioner did not make his ruling regarding the causation issue in a vacuum. Rather, the deputy weighed this evidence along with other evidence of record establishing Meadows’ appearance and actions on the day in question, as well as the testimony regarding the manner in which the accident occurred, in order to arrive at the ultimate finding of fact that Meadows’ death was not caused primarily by his intoxication. In overruling the deputy commissioner, the majority in effect usurps the fact-finder’s function.

In essence, the majority’s opinion, in holding that the evidence, as a matter of law, does not overcome Section 440.09(3)’s presumption, implies that the accident Meadows suffered is of the kind that does not occur in the absence of intoxication. The evidence adduced below as well as common knowledge belies any such notion as a viable statement of the law governing these circumstances. At the time of his death, Meadows was operating a forklift, a dangerous machine, in inherently dangerous surroundings where an accident could easily occur. There were no guardrails or other devices to either impede the movement of the forklift or serve as a warning of its dangerous proximity to the edge of the loading dock. See, R.P. Hewitt & Associates of Florida v. Murninghan, supra, at 355. Moreover, the deputy visited the scene of the accident and heard testimony from witnesses that Meadows was operating the forklift in an ordinary manner, with no evidence of horseplay, deviation from job requirements, nor any uncoordinated actions by Meadows indicative of intoxication. Finally, the testimony below established that Meadows attempted to leap from the forklift just prior to its fall off the loading dock, which the deputy was entitled to infer indicated Meadows’ awareness of his actions, rather than his being in an intoxicated stupor.

In effect, the majority has adopted a per se rule barring a claimant from recovering benefits any time his blood alcohol level is .10 or above, thereby attributing the claimant’s injury in all instances to his presumed intoxication. This view of the law regarding Section 440.09(3) is erroneous. The presumption contained in section 440.-09(3) is meant to serve as a device to protect an employer/carrier from the unfairness of paying benefits to a claimant with the requisite blood alcohol level where the producing cause of the accident is questionable, as where a claimant is injured in an unusual manner without any witnesses to the accident. This was precisely the situation involved in C.A. Meyer Paving and Construction v. McFalls by McFalls, 453 So.2d 912 (Fla. 1st DCA 1984), where the employee was killed in a single car accident with no direct evidence to establish what caused the accident, and no eye witness evidence to rebut the presumption of intoxication. Hence, the McFalls claimant had only circumstantial evidence to rebut the statutory presumption of intoxication, which this court found insufficient. Here, on the other hand, the deputy commissioner had before him direct evidence of how much Meadows drank prior to his accident, his tolerance for liquor, evidence of his appearance and actions during the entire working day, and whether or not he gave any indication by his appearance or actions that his control of the forklift was affected by intoxication at the time of the accident. See Ehrhardt, Florida Evidence, § 701.1 (2d Ed.1984) (upon proper predicate, lay testimony admissible, to prove intoxication or nonintoxication, in the form of observations as to physical appearance as well as opinions on intoxication). The abundance of evidence favorable to the claimants is especially significant when it is remembered that the issue is not simply whether there was evidence of intoxication, but whether the accident was “occasioned primarily” by intoxication. Section 440.09(3). Hence, it is clear that competent, substantial evidence supports the deputy’s finding that Meadows’ accident was not caused primarily by intoxication. See also Hacker v. St. Petersburg Kennel Club, 396 So.2d 161, 162 (Fla.1981) (“marginal” cases should be decided in claimant’s favor).

The issue of the admissibility of the blood alcohol test conducted on Meadows subsequent to his death was not preserved by appellees for appellate review. Nealy v. City of West Palm Beach, 442 So.2d 273 (Fla. 1st DCA 1983). Accordingly, I join in that part of the majority opinion. However, I dissent from the remainder of the opinion, and would affirm the order appealed from below in its entirety.  