          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D17-0815
                 _____________________________

BEVERLY INMON, Surviving
Spouse of Matthew Inmon
(Deceased),

    Appellant,

    v.

CONVERGENCE EMPLOYEE
LEASING III, INC., TECHNOLOGY
INSURANCE COMPANY, and
AMTRUST NORTH AMERICA OF
FLORIDA,

    Appellees.
                 _____________________________


On appeal from an order of the Judge of Compensation Claims.
William R. Holley, Judge.

Date of Accident: April 15, 2015.


                          April 18, 2018

B.L. THOMAS, C.J.

    In this worker’s compensation case, Claimant (the deceased
Employee’s spouse) appeals the judge of compensation claims’
(JCC’s) final order denying her claim for death benefits and funeral
expenses under section 440.16, Florida Statutes (2014). In the
order, the JCC found that no benefits were payable in accordance
with subsection 440.09(3), Florida Statutes (2014), because the
Employee’s death was primarily occasioned by his intoxication. We
reject Claimant’s argument that the JCC was precluded from
considering an intoxication defense under the circumstances of
this case. Nevertheless, we reverse the denial of benefits because
competent, substantial evidence (CSE) does not support the JCC’s
ultimate conclusion that the Employee’s death was primarily
occasioned by his intoxication.

     Under subsection 440.09(3), compensation is not payable if
the injury was occasioned primarily by the intoxication of the
employee. Although section 440.09(7)(b) also provides that
evidence of a certain blood alcohol level creates a presumption that
injury or death was occasioned primarily by the intoxication of the
employee, the Employer/Carrier (E/C) here were not entitled to the
presumption due to their non-compliance with the collection and
chain of custody procedures set forth in the administrative rules.
See, e.g., European Marble Co. v. Robinson, 885 So. 2d 502, 506-
507 (Fla. 1st DCA 2004) (holding that lack of compliance with
administrative rules on blood-alcohol testing precludes
presumption that injury primarily occasioned by alcohol).
Although the JCC found the blood alcohol testing did not
sufficiently comply with the Florida Administrative Code to
establish the intoxication presumption under section 440.09(7)(b),
the results were admissible on other grounds as chain of custody
and authentication were properly established.

     “When the presumption in section 440.09(7)(b) does not apply,
employer/carriers must ‘establish, by the greater weight of the
evidence, that the work-related injury was occasioned primarily by
the intoxication of the employee.’” See Thomas v. Bircheat, 16
So. 3d 198, 200 (Fla. 1st DCA 2009) (quoting Wright v. DSK Group,
821 So. 2d 455, 456 (Fla. 1st DCA 2002); see also Sterling v. Mike
Brown, Inc., 580 So. 2d 832, 835 (Fla. 1st DCA 1991) (affirming
JCC’s order finding employee’s injury was primarily caused by his
intoxication even without presumption). Thus, our standard of
review here is whether CSE supports the JCC’s finding that the
preponderance of the evidence proved the Employee’s death was
occasioned primarily by his intoxication, despite the
inapplicability of the presumption.


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     The undisputed evidence establishes that the Employee, a
construction helper, had been assigned to an out-of-town job with
Employer-provided per diem and hotel accommodations. After
work on April 15, 2015, the Employee’s supervisor dropped the
Employee off at a bar a few miles from his hotel. Later that
evening, the Employee was struck and killed by a truck on US
Highway 1. Surveillance video showed that the Employee was
weaving in and out of the road shortly before the accident, but the
incident itself was not video recorded. Claimant, who was talking
with the Employee on his cell phone at the time he was struck,
testified that that he was trying to flag down a ride, dropped his
phone twice during their conversation, and appeared to her to be
intoxicated, but functional. The E/C stipulated that the Employee
was on travel status and within the course and scope of his
employment when the accident occurred. Test results from the
Employee’s autopsy indicated a blood alcohol level in excess of the
legal limit. ∗

     In support of their intoxication defense, the E/C presented the
surveillance video along with the testimony of Corporal Gaugh, the
traffic homicide investigator who was called to the scene to
investigate the Employee’s death. The JCC, however, excluded a
good deal of the investigator’s testimony based on hearsay,
speculation, and the witness’s lack of expertise as an accident
reconstruction specialist. The JCC also sustained numerous
objections to testimony from a private investigator hired by the
E/C. Notably, the E/C did not present evidence from any of the
potential eyewitnesses to the accident including the truck driver
and another motorist who was behind the truck driver.

    In this appeal, Claimant challenges both the sufficiency and
admissibility of the evidence relied upon by the JCC when he
determined that the Employee was intoxicated when he was killed
and that his death was primarily occasioned by his intoxication.
The JCC’s determination involved findings of fact that must be


    ∗
       Although the JCC found the blood alcohol evidence was
insufficient, standing on its own, to establish the statutory
presumption on causation, he accepted expert evidence that the
Employee’s blood alcohol level constituted intoxication.

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upheld if any view of the evidence and its permissible inferences
supports them. See Ullman v. City of Tampa Parks Dep’t, 625
So. 2d 868, 873 (Fla. 1st DCA 1993) (holding factual findings are
reviewed for CSE). Based on our review of the record, CSE
supports the JCC’s factual finding that the Employee was
intoxicated at the time of his death, even if we were to find, as
Claimant argues, that the blood alcohol test results should not
have been admitted for any purpose. But just the fact that the
Employee was intoxicated will not constitute CSE to support the
JCC’s ultimate conclusion that his death was primarily occasioned
by his intoxication.

     In the order on appeal, the JCC concluded that the accident
was occasioned primarily by the Employee’s intoxication based on
his finding that the Employee was in the middle of the road at the
time he was struck. In support, the JCC listed the following
evidence: (1) the video showing the Employee “stumbling in and
out of the road where cars were driving by him just minutes prior
to the actual collision”; (2) damage on the driver’s side of the truck
“which allows a reasonable inference that [the Employee] was in
the middle of the road when the [truck] hit its brakes”; and (3) the
placement of the Employee’s body in relationship to the final
resting place of the truck that struck him. Assuming, for the sake
of argument, that the Employee’s presence in the middle of the
road is both the cause of the accident and primarily a result of his
intoxication, CSE does not otherwise support the JCC’s finding
that the Employee was in the road at the time of the collision.

     Under the circumstances here, all three of the factual findings
are of questionable probative value in establishing the Employee’s
location at the time of the accident. First, because the surveillance
video does not show the collision itself, it is unclear why this
footage alone makes it more likely than not that the Employee was
in the road when he was struck. Second, the inference that the JCC
drew from the damage on the truck might be reasonable if an
accident reconstruction expert had provided an opinion
establishing the middle of the road as likely the point of impact
based on, for example, the tire skid marks. Without this evidence,
and in the absence of eyewitness testimony, the possibility cannot
be ruled out that the truck veered off the road for some reason
unrelated to the Employee’s presence and struck the Employee

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while he was standing somewhere off of the road. Third, the
placement of the Employee’s body in relation to the truck was
established by Corporal Gaugh’s testimony of what he observed on
the scene after the Employee’s body had been moved by emergency
medical service personnel.

     In short, the JCC’s deduction that the Employee was in the
road at the time of the collision is based on inferences with no
direct evidence. Stacked upon this inference is the inference that
the Employee could only have been in the road because he was
intoxicated. This is an impermissible stacking of inferences to
establish an essential finding of fact. See, e.g., Espada Enters., Inc.,
v. Spiro, 481 So. 2d 1265, 1268 (Fla. 1st DCA 1986) (reversing
deputy commissioner’s award of death benefits where finding of
compensability was based on certain assumptions and inferences
rather than CSE) (citing Girdley Constr. Co. v. Ohmstede, 465
So. 2d 594, 596 (Fla. 1st DCA 1985) (reversing deputy
commissioner’s finding that employee’s death was result of
compensable accident based on impermissible stacking of
inferences)).

    Accordingly, we REVERSE the order below and REMAND for
entry of an order awarding Claimant death benefits and funeral
expenses under section 440.16.

JAY and M.K. THOMAS, JJ., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


John J. Rahaim II and Amie DeGuzman, Jacksonville, for
Appellant.

Rayford H. Taylor of Hall Booth Smith, P.C., Atlanta, and Heather
Bryer-Carbone of Marshall Dennehey Warner Coleman & Coggin,
Jacksonville, for Appellees.

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