WEST VIRGINIA RECORD

CHARLESTON – The state Supreme Court has found that a Workers’ Compensation claim filed by the widow of a man who drowned when his dump truck turned over in a pond was properly denied, considering the deceased's blood alcohol level at the time of the accident.

The unanimous court issued the opinion affirming the Workers’ Compensation Board of Review on July 15.

Mark A. Gray was at the wheel of a Hawkeye Contracting, LLC dump truck when the truck went backwards into a sediment pond and turned over, leading to his drowning. The deceased’s widow, Beverly Gray, filed a dependent’s claim with the state Workers’ Compensation claims administrator.

The claim was denied because Mark Gray had been drinking prior to the accident, according to the opinion. The Chief Medical Examiner of West Virginia conducted an autopsy of the deceased, finding his blood alcohol level was 0.08 percent, which is greater than the legal limit for driving under state law.

Additionally, Mark Gray’s co-workers gave depositions stating that they smelled alcohol on him when they attempted CPR and that Gray had “displayed abnormal behavior” on the morning of the accident. Witnesses claimed that they saw a beer can in the truck prior to the accident and that Gray did not “hesitate or attempt to stop” before driving the truck into the pond.

The Workers’ Compensation Office of Judges affirmed the claim’s administrator’s order of Aug. 13, 2009, after concluding that there was no evidence indicating that Gray’s death was the result of actions or inactions taken by Hawkeye Contracting. The Board of Review agreed.

Beverly Gray appealed the Board of Review’s decision to the state Supreme Court. The court affirmed the Board of Review’s decision, ruling that “the decision of the Board of Review is not in clear violation of any constitutional or statutory provision, nor is it clearly the result of erroneous conclusions of law, nor is it based upon a material misstatement or mischaracterization of the evidentiary record.”