B E F O R E:                THE HONORABLE COSMO A. GIOVINAZZI, III
                                    SUPERVISING JUDGE OF COMPENSATION

A P P E A R A N C E S: 

                                    ROSENBERG & GOLDSTEIN, ESQS.

                                    BY:      RICHARD ROSENBERG, ESQ.
                                                1555 ZION ROAD
                                                NORTHFIELD, NJ 08225
                                                Attorney for the Petitioner
 
                                                WILLIAM J. BARRETT, ESQ.
                                    BY:      THOMAS R. HLAWATSCH, ESQ.
                                                301 SULLIVAN WAY
                                                WEST TRENTON, NJ  08628
                                                Attorney for the Respondent

In the case of Royal vs. Jersey Shore Professional Baseball, claim petition number 2003-20328, I entered a decision on the record on September 16, 2006 concluding that petitioner was entitled to dependency benefits on behalf of her two grandchildren as a result of the death of petitioner’s decedent, Mark Royal.  This is an amplification of my decision. 

FINDINGS OF FACT 

Petitioner, Rathel Royal is the 73 year old mother of decedent, Mark Royal, who died on April 12, 2003 as a result of a fall from a step ladder on respondent’s premises.  At the time of his death, Mark Royal left two children, Roxanne, age 16 and Jermain, age 13.  Petitioner, her son Mark, and his two children all lived in petitioner’s home on South Drive in Atlantic City, NJ.  On June 16, 1994, petitioner took custody of decedent’s children when their mother, Maxine Rankin, and decedent consented to transfer custody to her.  An Order for Custody was entered in the Superior Court of New Jersey, Chancery Division, Family Part.  Petitioner retained custody of the children thereafter.

In February of 1995, decedent Mark Royal was found to be disabled and began receiving social security disability benefits.  His initial entitlement was $493 per month.  In addition, auxiliary benefits were awarded to each of his children in the amount of $74 each.  Social security disability benefits were thereafter paid in the name of petitioner, Rathel Royal for decedent and his children and deposited directly into her account.  Mrs. Royal used Mark’s disability income, her own money, and about one-half of Mark’s wages to pay for household expenses, food, and the needs of her grandchildren.  In addition, decedent sometimes gave money directly to his children to purchase things which they wanted. 

Notwithstanding his disability, petitioner’s decedent subsequently began working as a general laborer for South Jersey Professional Baseball, a minor league baseball team located in Atlantic City.  Petitioner’s decedent worked at the Sandcastle Ball Park five days per week, although the hours worked each day apparently varied.  Based on the 26 week wage statement submitted (R-1) petitioner’s decedent did not work at all from approximately Thanksgiving until the middle of February when it appears he began working again on an as needed basis.  He was scheduled to be off work on Saturday, April 12, 2003.  He woke at about 9:00 a.m. on that date, and advised his mother that he would clean the house for her.  He completed his cleaning chores at about 12:00 noon, and retired to his room with a quart of beer which he had purchased the night before.  Petitioner heard music playing in her son’s room in the early afternoon, and assumed that he had fallen asleep.  Sometime between 2:00 and 3:00 p.m., petitioner received a call from Daniel Petrazzolo, her son’s supervisor at the ball park.  Petrazzolo asked to speak with decedent and requested petitioner to wake him up.  When Mark Royal came to the phone, Petrazzolo advised him that he wanted him to work that afternoon, and that he would pick the decedent up at his home.  Decedent went upstairs to put on a shirt and some shoes. When Petrazzolo arrived a few minutes later, decedent walked back downstairs, out the front door and got into Petrazzolo’s car, and was driven directly to the ball park.   

Petrazzolo estimated that he picked decedent up in the mid-afternoon.  Once at the ball park, he assigned decedent to clean both dugouts of debris which had accumulated over the winter.  He checked on decedent’s progress on two or three occasions, and advised him that when he was finished he was to get the yellow ladder and bring it to the concourse, where decedent was to remove a sign which had been damaged by a winter storm. 

Sometime later, Petrazzolo returned to the dugouts to inspect petitioner’s work.  He could see the yellow ladder standing on the concourse, where it had been placed by decedent.  After completing his inspections of the dugouts, Petrazzolo proceeded to the concourse.  When he arrived, he found the yellow ladder standing under the damaged sign, and decedent lying in the concourse about ten feet from the ladder.   

Petrazzolo went over to the decedent, called his name and touched him.  Decedent responded by looking at Petrazzolo as if in a daze, and stating “I’m OK, boss, I’m OK.”  Petrazzolo asked decedent whether something was wrong, or whether he was sick, and decedent didn’t respond.  He then told decedent that he was going to send him home, and would get him a drink of water from the concession stand. 

Upon hearing this, decedent apparently became excited, and got up without assistance, repeating again “I’m OK boss, I’m OK.”  Petrazzolo did not smell an odor of alcoholic beverage on decedent at that time, and described him as looking droggy, like he had just awakened.  Petrazzolo then went into the concession stand to get some water for decedent.  When he returned, he saw the decedent at the top of the eight foot yellow ladder, hanging from the aluminum sign frame that was to be taken down.  Decedent had only the tip of one foot on the ladder at that point.  Petrazzolo ran over to the ladder and said “Mark, come on, you got to get down.”  Decedent insisted again that he was okay, then put both feet on the ladder and began to climb down.  With one foot on the fourth step of the ladder, decedent reached down for the next step, missed the step, and fell a distance of approximately 4 ½ feet.  He landed on the concrete concourse on his feet, fell backward onto his buttocks, and then fell back until his head struck the concourse with a loud thump.  Petrazzolo tried talking to the decedent, who did not respond to him.  All Petrazzolo heard was heavy snoring.  He then ran to the press box where he called 911.   

The records of the Mobile Intensive Care Unit (J-1) indicate that the unit was dispatched at 5:50 p.m., and arrived at the Sandcastle at 6:03 p.m.  The unit left the ball park with decedent at 6:23 p.m. and arrived at Atlantic City Medical Center at 6:30 p.m.  Decedent was admitted to the emergency room at 6:46 p.m.  At about 7:44 p.m., blood was drawn from the decedent, and testing revealed an alcohol level of 135 milligrams/deciliter.  In addition, although petitioner had a history of seizures for which he was prescribed Dilantin, this medication was not present in his blood at the time of the blood test.  Decedent was subsequently admitted as an inpatient on April 13, 2003 with a diagnosis of severe closed head injury, multiple cerebral contusions, ventilator dependent and respiratory failure.  The hospital records clearly indicate that petitioner had a history of seizure disorder, hypertension and alcohol abuse.  Decedent died on April 14, 2003 due to complications from the severe head injury which he suffered on April 12^th.  

Additional hospital records introduced into evidence (P-11) make it clear that decedent was well known to the Atlantic City Medical Center.  Between 1996 and March, 2003, petitioner was treated for seizures and drug overdose on approximately seven occasions.  The hospital records also indicate a history of alcohol abuse.  At the time of treatment on April 12, 2003, in addition to the alcohol found in his blood, petitioner also had traces of opiates in his urine, although the levels indicated use 24 to 72 hours prior to admission.   

Petitioner asserts that the decedent, Mark Royal died as a result of injuries which arose out of and in the course of his employment with the respondent and filed a dependency claim petition seeking dependency benefits for petitioner’s children, Roxanne Royal and Jermain Royal.  Respondent acknowledges that petitioner died as a result of the closed head injuries which he sustained when he fell from a ladder on respondent’s premises.  However, respondent contends that petitioner was intoxicated at the time of his death, and that petitioner’s intoxication was the proximate cause of his injury.  Respondent also questions whether decedent’s children were dependents within the meaning of N.J.S.A. 34:15-13(f).  If so, whether they are entitled to dependency benefits of 55% of petitioner’s gross weekly wages or 70% as a result of the amendment to N.J.S.A. 34:15-13 in January of 2004. 

CONCLUSIONS AND LEGAL ANALYSIS 

N.J.S.A. 34:15-7 provides in pertinent part that compensation benefits are required in cases of personal injury or death of an employee “arising out of and in the course of employment…except when the injury or death is intentionally self-inflicted, or when intoxication or the unlawful use of controlled dangerous substances… is the natural and proximate cause of death.”  Tlumac v. High Bridge Stone (A-69-05), Supreme Court, decided July 19, 2006.  Our courts have interpreted this section to hold that the statutory defense of intoxication requires that intoxication be the sole cause of the accident to bar recovery for workers’ compensation benefits.  Tlumac, supra; Warner vs. Vanco Manufacturing, Inc. 299 N.J. super. 349 (App. Div. 1997); Kulinka vs. Flockhart Foundry Co., 9 N.J. super. 495 (L.Div. 1950).  Furthermore, our courts have recognized that “the effect of any given percentage of alcohol through blood in terms of aberration from normal behavior concededly varies in individuals.”  Olivera v. Hatco Chemical Co., 55 N.J. super. 336, 355 (App. Div. 1959); (Conford, JAD, concurring); Warner v. Vanco Manufacturing, Inc., supra. 

As the court pointed out in Warner, where an employer asserts the defense of intoxication, the burden is on the respondent to demonstrate “by the greater weight of the evidence that the employee’s injury was produced solely by his intoxication if the employer is to defeat a compensation award.  …Hence, the employer must exclude other probable contributory or concurring causes of injury or death.” 

The Supreme Court in Tlumac and the Appellate Division in Warner cited with approval Kulinka v. Flockhart Foundry Co., supra. where the courts held: “The employment must supply no more than the setting, the stage, the situation in which the fall occurred; it can be no more than an inactive condition as distinguished from a moving cause.  If the hazards or risks which are incidental to the employment concur with the employee’s insobriety in producing the fall or if the hazards or risks contribute efficiently to the production of the fall, compensation cannot be denied.” 

In Warner, supra., petitioner fell from a scaffold which was approximately two feet wide, cluttered with work materials and eighteen feet off the ground.  The evidence showed that petitioner had been drinking the night before the accident, consuming ½ gallon of vodka, and had a blood alcohol reading of .29 percent when he fell at 1:30 p.m.  Co-employees testified that petitioner had not acted unusual on the date of the accident, and that he looked and acted normally.  Petitioner fell when he attempted to kick a crane hook into place in order to move the assembly apparatus.  Respondent’s expert testified that petitioner was intoxicated at the time of the accident and that his intoxication was the sole and proximate cause of the accident.  The Judge of Compensation concluded that respondent failed to sustain its burden of proving that petitioner’s intoxication was the sole cause of the accident, noting that there was no evidence that petitioner was staggering, falling or unable to keep his balance.  Rather, the judge concluded that the specific hazards of the job, i.e., the sliding crane, contributed to petitioner’s fall.  The Appellate Division affirmed, holding that decisional law interprets 34:15-7 to require an employer to demonstrate “by the greater weigh of the evidence that the employee’s injury was produced solely by his intoxication.” 

In Tlumac, supra., petitioner was injured when he fell asleep while driving a flat bed tractor trailer at approximately 4:14 a.m.  His truck left the roadway, traveled 180 feet off the road, struck a curb then traveled an additional 66 feet on the dirt shoulder, struck a guard rail for 247 feet before hitting a utility pole and came to rest against a tree.  The evidence showed that petitioner had been installing a new roof on his home the day prior to the accident, at which time he had consumed a number of beers.  Respondent’s expert concluded that the blood samples which had been taken of the petitioner showed that petitioner had a blood alcohol reading of between .10 and .12 based on one sample, and between .12 and .18 based on the second sample.  The Supreme Court upheld the Judge of Compensation, who concluded from the facts of the case, that respondent had failed to meet its burden of establishing that intoxication was the sole cause of the accident.  In so doing, the court concluded that its interpretation was in keeping with the remedial purposes of the Workers’ Compensation Act – to make benefits readily and broadly available to injured workers through a non-complicated process. 

In the instant case, although respondent asserts a defense of intoxication, there is no evidence of intoxication other than the blood test which respondent’s expert extrapolated to conclude that at the time of his fall from the ladder, the decedent had a blood alcohol reading of between .15 and .17%.  There is evidence through petitioner’s mother that after he had cleaned the house, he went to his room with a quart of beer which he had partially consumed.  When he came down the steps to answer the telephone, there was no outward indication that he was intoxicated.  His mother testified that he walked without difficultly and had no difficulty speaking.  There was nothing about her observation of him which suggested that he was intoxicated.  Similarly, respondent’s witness, Daniel Petrazzolo, testified that when petitioner walked out of his front door and entered his car in the driveway, petitioner looked fine and normal. As he spoke with petitioner in the car, his speech was not slurred nor did he notice any indication of intoxication.  He smelled no odor of an alcoholic beverage.  Similarly, Petrazzolo had the opportunity to observe decedent in the dugouts on two or three occasions when he went in to check on him, and saw nothing to indicate that petitioner had been drinking, or that he was otherwise intoxicated.  Decedent obviously located the yellow ladder as he had been instructed and placed it under the sign which was to be taken down.  It was not until Petrazzolo returned to the concourse after inspecting the dugouts that he saw petitioner lying on the concourse about 10 feet from the ladder.  When he reached down to shake the petitioner he again indicated that he smelled no odor of an alcoholic beverage.  He testified that petitioner appeared droggy, as if he had just awakened from sleep.  It was not until he told petitioner that he would have to send him home that petitioner’s speech became somewhat excited.  Decedent got up from the concourse without assistance and there was no indication that he staggered or showed any signs of intoxication other than his excited speech.  

Although Petrazzolo was shocked to see petitioner hanging onto the aluminum sign frame when he returned from the refreshment stand with a glass of water, there was no way to know what went through decedent’s mind when he grabbed onto the sign.  He had been instructed to take the sign down, and it would appear that he was attempting to do just that.  While one may argue that the manner in which he went about it, as described by Petrazzolo was somewhat odd, petitioner may have been attempting to pull on the sign to dislodge it, or to lift it from its connection.  Clearly, when Petrazzolo told decedent to come down from the ladder, he let go of the sign and placed both feet back on the ladder.  As he attempted to reach down for the next step, decedent missed the step and fell approximately 4 ½ feet to the concrete where he landed on his feet then fell to his buttocks and then struck his head.  From this description, I conclude that petitioner’s fall was a result of the risk incidental to descending the ladder, that such risk contributed efficiently to the fall, and that compensation cannot be denied.   

Respondent produced Doctor Robert Pandina, PhD. who was an adjunct professor in the Department of Psychiatry at the University of Medicine and Dentistry in New Jersey and the Director of the Center of Alcohol Studies at Rutgers University, a position which he has held since 1993.  Doctor Pandina has written widely on the impact of drugs and alcohol on behavior.  Doctor Pandina testified that under the motor vehicle statute, an individual operating a motor vehicle is presumed to be under the influence of alcohol if that individual has a blood alcohol level of .08 milligrams percent.   

Doctor Pandina, of course, never saw the decedent.  Prior to his testimony, he had examined the emergency room and inpatient records of the Atlantic City Medical Center which were made in conjunction with the hospitalization of decedent.  The records indicated that the blood tests performed at the hospital showed that petitioner had a serum alcohol concentration level of 135 milligrams per deciliter of blood.  Doctor Pandina concluded that the serum alcohol concentration of the petitioner at the time of the blood test extrapolated to a blood alcohol concentration of .12 percent at the time that the test was taken, and further extrapolated for a blood alcohol reading of .16, plus or minus .01 at the time that petitioner fell from the ladder.  Solely on the basis of petitioner’s blood alcohol level of .16 or .15, Doctor Pandina concluded that petitioner’s blood alcohol was a material contributing factor to decedent’s fall from the ladder, because it would disrupt his balance capacity and impact adversely on his ability to conduct even what appears on the surface to be relatively simple divided attention tasks. 

After listening carefully to the doctor’s testimony, including his opinion, I conclude that his opinion is not sufficient to carry the burden of proving that petitioner’s intoxication was the sole cause of his work related accident and subsequent death.  I reach this conclusion for a number of reasons.  First, Doctor Pandina did not testify that petitioner’s intoxication was the sole cause of the work accident as required by our case law.  Rather, it was his opinion that petitioner’s blood alcohol level was a material contributing factor to the fall from the ladder.  Doctor Pandina’s opinion alone does not meet the burden required by the law.  Secondly, Doctor Pandina admitted that other than the fact that petitioner was lying on the concourse before going up on the ladder, there was absolutely no evidence of his intoxication prior to his fall from the ladder.  There was no indication while petitioner was at home that he was intoxicated.  There was nothing in the testimony from Mr. Petrazzolo from which one would conclude that petitioner was intoxicated when he entered the ball park, when he was cleaning the dugouts or when he brought the ladder to the concourse.  Other than the excited manner in which the petitioner spoke when Mr. Petrazzolo threatened to send him home, there was absolutely no evidence of intoxication. 

Further, in analyzing how petitioner’s blood alcohol level may have risen to the point where it was at the time of his blood test on the evening of April 12, 2003, Doctor Pandina examined a number of scenarios.  He indicated that it was least likely that petitioner had consumed excessive alcohol the night prior to April 12^th because of the length of time that had passed prior to petitioner going to work with Mr. Petrazzolo on April 12^th.  It was Doctor Pandina’s opinion that the most likely scenario was that petitioner had consumed alcoholic beverages immediately prior to having gone up on the ladder, given the observations made of the decedent at his home and on the way to the ball park.  However, Doctor Pandina also testified that the odor of an alcoholic beverage is most likely to appear on a person’s breath shortly after having consumed an alcohol containing beverage.  Yet Mr. Petrazzolo, who knelt next to the petitioner to shake him when he believed him to be sleeping on the concourse, specifically testified that he did not smell an odor of an alcoholic beverage on petitioner’s breath at that time.  Furthermore, there is absolutely no evidence that petitioner consumed any alcoholic beverages at the ball park.  Even though petitioner was not under Mr. Petrazzolo’s continuous observation after arriving at the ball park, there is no indication that he transported alcohol with him when he came to work, and there is absolutely no evidence that any bottles or other containers were found which could have been utilized by the petitioner as he was cleaning the dugouts.  Thus, speculating that petitioner most likely had some alcoholic beverage to drink immediately before falling from the ladder is conjecture at best and not supported by any evidence in the record. 

Based upon the evidence available to me, I conclude that it is more likely than not that decedent consumed sufficient alcoholic beverages prior to going to the ball park on April 12, 2003, so as to raise his blood alcohol level to the point determined by Dr. Padina.  Decedent was in his room, alone, for approximately 3 hours before being picked up by Mr. Petrazzolo.  His mother saw him bring a quart of beer up with him.  He did not expect to be called into work on the afternoon of April 12^th and thus felt comfortable imbibing alcohol in the privacy of his room.  He obviously consumed something other than beer, or if not, certainly more than a quart.  The fact that decedent did not appear to be intoxicated afterward simply gives credence to Judge Conford’s observation that “the effect of any given percentage of alcohol through blood in terms of aberration from normal behavior concededly varies in individuals.”  Olivera v. Hatco Chemical Co., supra.  Additionally, Mr. Petrazzolo testified that the only times he had seen petitioner apparently intoxicated was when he had come to the park to pick up his check and on those occasions that he smelled an odor of alcoholic beverage on him.  I infer from this testimony that Mr. Petrazzolo never saw him intoxicated at work, which would suggest that petitioner did not drink while at work at the ball park. 

Respondent argues that petitioner was intoxicated because he had a blood alcohol concentration of approximately .15 at the time of his fall, which is above the level of .08 which N.J.S.A. 39:4-50 uses as “the legal definition for intoxication under New Jersey’s Motor Vehicle Laws.”  However, the DUI Statute does not state that a driver with a blood alcohol level of .08 is intoxicated.  It simply presumes that a driver with a blood alcohol level of .08 or higher is under the influence of an intoxicating liquor and therefore guilty of a motor vehicle violation. 

Webster’s II New College Dictionary, 1999 defines the word “intoxicate” as meaning “to bring about, especially by the effect of ingested alcohol, any series of progressively deteriorating states ranging from exhilarating to stupefaction.” This suggests a visible condition in one who is under the influence of an alcoholic beverage.  In the instant case, there is little visual evidence from which one can conclude that decedent was intoxicated prior to his fall from the ladder. 

For the reasons above stated, I conclude that the respondent has failed to carry its burden of proving that decedent was intoxicated at the time of his fall, or that his accident and death was caused solely by intoxication. 

Respondent also argues that tests taken after decedent’s admission to the Atlantic City Medical Center indicated that he had used a controlled dangerous substance prior to his fall, so that these test results should preclude recovery by his dependents.  However, the urine test was interpreted as showing that the traces of opiates in decedent’s urine were consistent with use 24 to 72 hours prior to admission.  There is no evidence from which one can conclude that these opiate traces were the natural and proximate cause of decedent’s accident or subsequent death. 

Respondent also attempts to argue that decedent’s supervisor terminated decedent’s employment prior to his fall, so that respondent is not liable to pay dependency benefits.  I reject this argument and conclude that decedent’s fall rose out of and in the course of his employment.  Decedent was transported to the ball park by Mr. Petrazzolo, who would most likely drive him home.  Mr. Petrazzolo also gave him assignments, along with the general manager when he began working that afternoon.  Decedent carried out these assignments to the point of placing the yellow ladder under the sign which was to be taken down.  At that point, it would appear that decedent attempted to take a rest by sitting or lying on the concourse.  Upon seeing him, Mr. Petrazzolo thought he might be sick.  He shook decedent and asked if he was alright.  Decedent responded that he was fine.  When Mr. Petrazzolo told decedent that he was going to send him home, decedent got up from the concourse, on his own, insisting that he was fine.  Possibly fearing the loss of his job, decedent then went up ladder to attempt the sign removal.  This sequence obviously occurred very quickly, as evidenced by the fact that Mr. Petrazzolo was “shocked” to see decedent on top of the ladder, clinging to the sign, when he returned with water. 

Listening to Mr. Petrazzolo’s testimony, I am not convinced that his statement about sending decedent home was a command, or an order to cease work, as opposed to a comment or suggestion uttered due to concern about petitioner’s health.  Given the quick sequence of events, the fact that decedent was still on respondent’s premises, the fact that Mr. Petrazzolo had left decedent to get him some water, and decedent’s likely desire to prove that he was capable of continuing work, I conclude that petitioner’s fall flowed directly from his employment and the circumstances which existed at the time.  There is insufficient evidence from which to conclude that decedent’s employment had ended prior to his fall from the ladder.

                                                                         _______________________________

                                                                        Cosmo A. Giovinazzi, III
                                                                        Supervising Judge of Compensation

Date:  January 26, 2007