205 U.S. 60 (1907)
WILMINGTON STAR MINING COMPANY
v.
FULTON.
No. 139.
Supreme Court of United States.
Argued January 7, 1907.
Decided March 4, 1907.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.
Mr. William P. Sidley, with whom Mr. Arthur D. Wheeler and Mr. Charles S. Holt were on the brief, for plaintiff in error.
Mr. Arthur J. Eddy, with whom Mr. P.C. Haley and Mr. E.C. Wetten were on the brief, for defendant in error, submitted.
*64 MR. JUSTICE WHITE delivered the opinion of the court.
On January 27, 1901, Samuel Fulton, while working as a trackman and mine laborer in a mine operated by the Wilmington Star Mining Company in Grundy County, Illinois, was killed by an explosion of mine gas. Minnie Fulton, the widow, on behalf of herself and children, brought this action against the mining company in a court of the State of Illinois to recover damages for the death of her husband. Because of diversity of citizenship the case was removed to the Circuit Court of the United States for the Northern District of Illinois.
The counts of the petition upon which the cause was ultimately tried were eight in number, and in each was set out a specified act of negligence averred to have been the proximate cause of the accident and to have constituted willful failure to perform specified statutory duties. In count 1 it was alleged that the mining company failed to maintain in the mine currents of fresh air sufficient for the health and safety *65 of Fulton. Count 2 charged the failure to maintain cross cuts in the mine at proper distances apart, to secure the best ventilation at the face of the working places. In count 3 the company was charged with having failed to build all necessary stoppings in a substantial manner to close cross cuts connecting the inlet and outlet air courses in the mine. In count 4 the negligence set up was the failure to have the place in the mine where Fulton was expected to pass and to work inspected before Fulton was permitted to enter the mine, to ascertain whether there were accumulations of gas therein. In count 5 it was charged that the mining company, with knowledge of the existence of an accumulation of dangerous gases in the mine and its unsafe condition when Fulton, in the course of his employment, entered the mine on the morning of his death, willfully failed and neglected to prevent Fulton from entering the mine to work therein before the dangerous gases had been removed and the conditions in the mine rendered safe, said Fulton not being then and there under the direction of the mine manager. In count 6 it was charged that the mining company, on the morning of the accident, had knowledge that a valve attachment of a certain steam pipe used to conduct steam generated for the purpose of running a ventilating fan in the mine had become accidentally broken or lost, whereby the air currents in the mine became obstructed and stopped, and a large quantity of dangerous gas was permitted to accumulate in the mine at the place where Fulton was required to pass and to work. And it was further charged that, although having such knowledge, the mining company willfully failed and neglected to order the withdrawal of Fulton from the mine and prohibit his return thereto until thorough ventilation had been established. In count 7 the negligence charged was that the mining company permitted Fulton to enter the mine before the mine examiner had visited it and seen that the air current was traveling in proper course and in proper quantity, and before the accumulation of dangerous gas, then in the mine, had been broken up or removed therefrom. In count 8 *66 it was charged that the mining company had knowledge that accumulations of gas existed in the mine, yet it willfully failed and neglected to place a conspicuous mark at that place in the mine where accumulations of gas existed as a notice to Fulton and other employes to keep out, whereby Fulton failed to receive the statutory notice and warning of the existence of accumulated gas, and did not know of the dangerous condition of the mine when he proceeded to work at and near the place in the mine where such dangerous accumulation of gas existed.
To these various counts the defendant plead the general issue. The case was twice tried by a jury. On the first trial, at the close of the evidence for the plaintiff, the jury was instructed to find for the defendant. This judgment was reversed by the Circuit Court of Appeals for the Seventh Circuit. 133 Fed. Rep. 193. The second trial resulted in a verdict for the plaintiff and an entry of the judgment which is here assailed.
On the trial it was testified that the sinking of the shaft in the mine where Fulton met his death was commenced in the month of April or May, 1900. Fulton worked for several months at the mine before the accident, at first assisting in sinking the shaft. The mine is what is known as a long wall mine, in which, it was testified, cross cuts were not employed. Cross cuts are used in what is known as a room and pillar mine. In that class of mines parallel entries are run, and after proceeding a certain distance  usually sixty feet  a road is cut across, connecting the parallel entries to permit of a circulation of air. After going another sixty feet a new cross cut is made and the openings of the prior cross cut are stopped up, thus carrying the circulation of air to the new cross cut. The mine in question was thus intended to be constructed. From the bottom of the main or hoisting shaft towards the north, south, east and west radiated four main headings or roadways, and it was contemplated to construct a circular road connecting the outer ends of these four main roads so as to cause a complete circulation of air around the mine and through the *67 roadways. About three hundred feet to the eastward of the main shaft was situated an air or escapement shaft. At the time of the accident the roads radiating north, east and west had been completed, but the circular roadway had only been completed between the outer edges of the cast and north roads. Gas usually made its presence known in the west roadway after going fifty or sixty feet from the bottom of the main shaft. For some time before the accident men were employed at or near the end of this road continuing the circular road towards the northeast, and Fulton performed the work of track laying. In consequence of the non-completion of the circular roadway and the absence of natural ventilation in the west roadway, a ventilating fan was used to force air through air boxes to the places where the men were working in that roadway, "so as to give them air and keep the gases out." Whilst there is some confusion in the description of the situation and operation of the ventilating fan we take it that it was as follows: The fan was situated at the bottom of the shaft and was operated by a small engine in close proximity to the fan. The steam to work this engine was carried down from the boilers above, the steam pipe passing down the main shaft to the fan engine at the bottom. To turn on the steam to this engine and set it in motion there was a valve controlled by a wheel. There was another valve by which the accumulation of condensed water could be let off so as to enable the apparatus to be reached by live steam. This valve was intended also to be moved by a wheel, but that appliance had not been put on, and, therefore, in order to turn the valve the use of a wrench was necessary. A wrench used for this purpose was kept near the fan.
The mine manager stopped the fan about four o'clock on Saturday afternoon. On the next day (Sunday) Fulton and the mine manager descended the shaft together. The fan had not started when they reached the bottom of the shaft. The mine manager attempted to start the fan, but could not find the wrench, and there was a delay of a minute or two *68 while he went up the shaft and secured a wrench. When the fan was started the mine examiner and several other employes who had descended the mine just ahead of Fulton and the mine manager were with the latter in the immediate vicinity of the fan. At that time, as testified to by the mine manager, he believed there was gas in the west roadway. Soon after the starting of the fan Fulton and a helper proceeded along the west roadway with pit lamps  naked lights  on their caps, pushing a car loaded with track material. In a few minutes the explosion occurred which caused the death of Fulton and seriously injured the helper. There was contradictory evidence as to the instructions given by the mine manager to Fulton at the time he started into the west roadway. One version was that Fulton was told to wait awhile, until an examination had been made by the mine manager with a safety lamp. Another version implied from the evidence was that Fulton, entirely of his own volition, proceeded to the place where he was injured; and still another hypothesis was that Fulton was directed to proceed with the work without any caution. At the time of the explosion the mine manager, mine examiner and others were in the south roadway.
After the entry of judgment the cause was brought direct to this court on the ground that a constitutional right was claimed in the court below and denied.
The errors assigned which have been argued at bar present for consideration the following questions:
First, the constitutionality of the Illinois mining act of 1899 upon which this action was founded.
Second, the correctness of instructions to the jury on the subject of the proximate cause of the accident in the event Fulton went into the west roadway by direction of the mine manager.
Third, the correctness of a refusal to instruct the jury to return a verdict for the defendant if they found that "Fulton, at the time he was killed, was engaged in a willful act which endangered the lives or health of persons working in the mine *69 with him or the security of the mine or its machinery, and that such willful act on his part contributed to his death."
Fourth, the correctness of a refusal to instruct the jury that if the death of Fulton resulted in part from his reckless disregard of consequences in view of his own surroundings, the plaintiff could not recover.
Fifth, the correctness of the overruling of motions to strike out the second and third counts of the declaration, and of the refusal to instruct the jury that no recovery could be had on these counts, because no evidence had been introduced to support the same.
Sixth, the correctness of the refusal to give the following instructions:
"If you believe from the evidence that the decedent Fulton, just before the time of his death, entered the mine to work therein under the direction of the mine manager, Wilson, then you are directed to find the defendant `not guilty,' even though you may further believe from the evidence that all the conditions of the mine had not been made safe at such time, as charged in the declaration."
Seventh, the correctness of the overruling of a motion to strike out the fifth count of the declaration and in refusing to instruct the jury that no recovery could be had under said count, because no basis existed in the evidence for the asserted liability.
Eighth, the correctness of the overruling of a motion to strike out the sixth count of the declaration and a request for an instruction that no evidence had been introduced of any neglect as to the fan or machinery whereby the air currents of the mine became obstructed and stopped.
Before considering these alleged errors, however, we must dispose of a motion to dismiss. It is urged that as the direct appeal to this court rests alone upon the assertion of the repugnacy of the Illinois mining act to the Constitution of the United States, and as the claim of repugnancy is alone based upon certain provisions of that act providing for licensing *70 mine managers and examiners, defining their duties and compelling mine owners to employ only licensed managers and examiners, the writ of error should be dismissed, because there is ground broad enough to sustain the judgment wholly irrespective of the provisions of the Illinois act just referred to, which are asserted to be repugnant to the Constitution of the United States. This proposition is based upon the contention that the first count of the declaration charges a violation of duty imposed by the statute directly upon the mine owner, irrespective of the requirements of the statute as to licensed employes. But issue is taken on behalf of the plaintiff in error in respect to the correctness of this contention, and it is insisted that the first count is open to the same objections which are urged against the others. We think the motion to dismiss is without merit, because there is color for the contention as to the unconstitutionality of the statute, as well in respect to the first as to the other counts of the declaration.
We come, then, to consider the first assigned error, viz., the constitutionality of the Illinois mining act approved April 18, 1899, in force July 1, 1899, entitled "An act to revise the laws in relation to coal mines and subjects relating thereto, and providing for the health and safety of persons employed therein." Chap. 93, Rev. Stat. of Illinois.
It is conceded that the statute in question has been authoritatively interpreted by the Supreme Court of Illinois as imposing upon mine owners responsibility for the defaults of mine managers and mine examiners, employes who are required by the statute to be selected by the mine owners from those holding licenses issued by the state mining board created by the statute. And it is an alleged incompatibility between such responsibility of the mine owner and the obligation imposed upon the mine owner to employ only persons licensed by the State, and the nature and character of the duties which the statute imposes upon them, upon which is based the asserted repugnancy of the statute to the Fourteenth Amendment.
*71 Section 29 of article 4 of the Illinois constitution of 1870 is as follows:
"It shall be the duty of the general assembly to pass such laws as may be necessary for the protection of operative miners by providing for ventilation when the same may be required and the construction of escapement shafts, with such other appliances as may secure safety in all coal mines, and to provide for the enforcement of said laws by such penalties and punishments as may be deemed proper."
In carrying out this constitutional requirement the general assembly of Illinois has from time to time legislated for the protection of miners. The act of 1899, here assailed as repugnant to the Constitution of the United States, as said by the Court of Appeals for the Seventh Circuit, 133 Fed. Rep. 197, grew out of the desire "that every precaution should be taken against the unusual hazards and dangers incident to the inhabitancy of mines. It was intended, and intended rightly, to protect with all known expedients every person whose occupation required him to labor in these subterranean rooms and roadways."
The act is lengthy, covering 47 pages of print in the appendix to one of the briefs. In substance it created a state mining board, authorized that body to examine candidates for the position of state inspector of mines and to certify the names of the successful candidates to the governor, in whom was vested the power of appointment. Moreover, the statute fixed the qualifications of mine managers, hoisting engineers and mine examiners; required candidates for such positions to be examined by the state board and certificates to be furnished to those found competent, and made it unlawful in the operation of a coal mine to employ or suffer any person, other than one possessing the proper certificate, to serve as a mine manager, hoisting engineer or mine examiner. Section 16 prescribed in detail the duties of mine managers and miners; section 17 set forth the duties of hoisting engineers; and by section 18 the duties of mine examiners are prescribed. Interspersed, *72 however, throughout the remainder of the act are found in sections relating to the subject of ventilation, powder and blast, place of refuge, etc., requirements to be observed in effect supplementing the sections prescribing in detail the duties to be performed by the employes above mentioned. We think the omissions of duty charged in the various counts in the declaration are embraced in those in terms laid upon the mine manager or mine examiner. Considering this act, the Supreme Court of Illinois, in Henrietta Coal Company v. Martin, 221 Illinois, 460, first commented upon the decisions in Durkin v. Kingston Coal Co., 171 Pa. St. 193, and Williams v. Thacker Coal & Coke Co., 44 W. Va. 599, which cases dealt with statutes which, in their general purpose, were similar to the Illinois act. The Illinois court declined, however, to hold, as was done in the cases referred to, that where a statute directly imposed duties upon a mine manager the negligence of such mine manager could not be imputed to the owner, and indeed that the owner could not be made responsible for the act of such employe without causing the statute to be unconstitutional. The Illinois court expressly held that under the Illinois mining act a mine manager and mine examiner were vice-principals of the owner, and were engaged in the performance of duties which the owner could not delegate to others in such manner as to relieve himself from responsibility. Observing that in a number of its former decisions the Illinois court had assumed the law to mean what it expressly decided in the Henrietta case it did mean, viz., that in respect to the duties devolved upon the mine manager and mine examiner, those persons stood for the mine owner and were vice-principals, performing those duties. The court said:
"The fact that the proprietor, if he employs men to act in these capacities, is required to employ those who have obtained the certificate from the state mining board is without significance. The purpose of that provision was, so far as possible, to guard against the possibility of the proprietor employing *73 incompetent, intemperate, negligent or disreputable persons, and not to enable the operator to shift to his employes his responsibility for the management of the mine.
"The object of the mining act, as we gather from its various provisions, is to protect, so far as legislative enactment may, the health and persons of men employed in the mines of the State while they are in the mines. The principal measures prescribed for this purpose require the exercise of greater precaution and care on the part of the mine owner for the safety of the miners than was required by the common law. To hold that he may shift his liability to any person employed by him as examiner or manager who holds the certificate of the state mining board is to lessen his responsibilities and defeat, in great part, the beneficent purposes of the act. To hold him liable for a willful violation of the act, or a willful failure to comply with its provisions on the part of his examiner or manager, is to give force and effect to the statute according to the intent of its makers to prolong the lives and promote the safety and well-being of the miners."
Accepting this interpretation of the Illinois statute, and in view of the ruling in Consolidated Coal Co. v. Seniger, 179 Illinois, 370, 374, 375, that it is not obligatory upon a mine owner to select a particular individual or to retain one when selected if found incompetent, we think the act is not repugnant to the Fourteenth Amendment in any particular. In legal effect, duties are imposed upon the mine owner, customarily performed for him by certain employes, duties which substantially relate to the furnishing of a reasonably safe place for the workmen. The subject was one peculiarly within the police power of the State, and the enactment of the regulations counted upon we think was an appropriate exercise of such power. The use and enjoyment of mining property being subject to the reasonable exercise of the police power of the State, certainly the rights, privileges and immunities of a mine owner as a citizen of the United States were not invaded by the regulations in question, and the *74 imposition of liability upon the owner for the violation of such regulations being an appropriate exercise of the police power, was not wanting in due process. And even although the liability imposed upon the mine owner to respond in damages for the willful failure of the mine manager and mine examiner to comply with the requirements of the statute was not in harmony with the principles of the common law applicable to the relation of master and servant, it being competent for the State to change and modify those principles in accord with its conceptions of public policy, we cannot infer that the selection of mine owners as a class upon which to impose the liability in question was purely arbitrary and without reason. And the views just expressed also adequately dispose of the contention that by the statute the mine owner was denied the equal protection of the laws.
The asserted error next to be considered relates to instructions to the jury on the subject of the proximate cause of the accident in the event Fulton went into the west roadway by direction of the mine manager. In the course of the charge to the jury the court said:
"If you believe from the evidence that Wilson, the mine manager, directed Fulton to go into the west roadway, and that said Fulton did so in obedience to such order, and such order was the proximate cause of Fulton's death, without the giving of which Fulton would not have been killed, then the jury is instructed that the plaintiff cannot recover in this case, and the verdict should be for the defendant. You will note there that it follows, if you believe that this instruction, if there was one, to Fulton was the proximate cause of his death, note that in passing upon that question you must determine whether, first, if there was gas there at that time; and whether, if there was, that was or was not the proximate cause of his death. Now by proximate cause is meant efficient cause. In other words, if the gas had not been there, would his death have followed? And was gas being there necessary to his death? Or was the instruction, if there was *75 one, there willfully sending him there, the thing which caused his death; which was the greater cause? That is a question of fact for you to determine.

* * * * * * * *
"I said it was for them to determine what was the proximate cause if there was an order for this deceased to go into the mine, or whether it was the gas being there. Let the instruction be what I stated now, the last time; that covers it."
It is contended that the effect of the definitions of proximate cause, made as above, was to hopelessly confuse the jury. While it must be conceded that the instruction was greatly wanting in clearness, yet we think no prejudicial error was committed. Looking at the criticized instructions in connection with the context of the charge, it is clear that it was understood by all as importing that the mining company was at fault for the existence of the accumulated gas resulting in the explosion which caused the death of Fulton, since to have allowed the gas to accumulate was a disregard of the positive duty towards Fulton imposed by the statute. Now, conceding that the mine manager ordered Fulton into the west roadway, and conceding, further, that such order of the manager was one of the causes of the accident, for which no recovery could be had because not counted on the declaration, what follows? Simply this, that two concurring causes contributed to the death of Fulton  one the order of the mine manager, for which recovery could not be had under the declaration, and the other the neglect by the mine owner to perform his statutory duty to prevent the accumulation of the dangerous gases which led to the accident. But because one of the efficient causes, the order of the mine manager, under the pleadings, did not give rise to a right of recovery, it did not follow that therefore the owner was absolved from responsibility for the cause of the accident for which he was liable. Washington & G.R. Co. v. Hickey, 166 U.S. 521.
We next consider two contentions: a. That the trial court erred in refusing to instruct the jury to return a verdict for *76 the defendant if they found that Fulton, at the time he was killed, was engaged in a violation of the statute, which contributed to his death; that is, the doing of a willful act which endangered his life and the lives or health of persons working in the mine with him, and which jeopardized the security of the mine or its machinery; and, b. That the court also erred in refusing to instruct that if the death of Fulton resulted in part from his reckless disregard of consequences in view of his known surroundings, the plaintiff could not recover.
Leaving out of view the contention that the first requested instruction was rightly refused because too general, and bearing in mind that in an action to recover damages under the Illinois mining act a mine owner is deprived of the defense of contributory negligence, Carterville Coal Company v. Abbott, 181 Illinois, 495, 502, 503, and assuming that the refused instruction might properly have been given if the tendency of the proof justified it, we think the instruction was rightly refused, because we are of opinion that there was no evidence tending to show the doing by Fulton of a willful act of the character contemplated by the statute or a reckless disregard by him of his personal safety. While the evidence might have justified the inference that Fulton before entering the west roadway knew that it had not been cleared of gas, yet it cannot be inferred that Fulton and his helper suspected that gas had so permeated the roadway as to render it perilous to life to go to the point where the explosion occurred. The jury had been instructed that there could be no recovery if the proof established the contention of the mining company that Fulton entered the part of the mine in which he was killed against or contrary to caution given him by the mine manager, and if Fulton was permitted to enter the west roadway without caution it is impossible on this record to infer that the jury would have been justified in finding that it was obvious that to enter the west roadway was so hazardous as to give support to the conclusion that Fulton willfully and recklessly went to his destruction.
*77 It is asserted that the court erred in refusing to give the following instruction:
"If you believe from the evidence that the decedent Fulton, just before the time of his death, entered the mine to work therein under the direction of the mine manager, Wilson, then you are directed to find the defendant `not guilty,' even though you may further believe from the evidence that all the conditions of the mine had not been made safe at such time, as charged in the declaration."
The requested charge was based upon the last paragraph of that portion of section 18 (b) of the Illinois mining act, dealing with the duties of mine examiners, reading as follows:
"To post danger notices. (b) When working places are discovered in which accumulations of gas, or recent falls, or any dangerous conditions exist, he shall place a conspicuous mark thereat as notice to all men to keep out, and at once report his finding to the mine manager.
"No one shall be allowed to remain in any part of the mine through which gas is being carried into the ventilating current, nor to enter the mine to work therein, except under the direction of the mine manager, until all conditions shall have been made safe."
We construe this provision of the statute as relating to steps to be taken when a mine or a portion thereof is discovered to be unsafe and as relating to the necessary work to be done in the mine under the immediate supervision and direction of the mine manager to remedy the unsafe condition. As, however, there is no proof tending to show that Fulton in entering and working in the mine came under any of these conditions, we think the instruction was rightly refused.
The remaining assignments assert the commission of error by the trial court in overruling motions to strike out the second, third and sixth counts of the declaration and in refusing to instruct the jury that no recovery could be had under any of those counts, because no evidence had been introduced tending to establish the commission of the particular *78 acts of negligence charged in those counts. Such counts as we have seen related to the failure to construct cross cuts and stoppings in the mine and to an alleged defect resulting from the absence of a wheel and the consequent necessity of using a wrench for the purpose of opening a valve to allow condensed steam to escape as a prerequisite to the movement of the ventilating fan. We are constrained to the conclusion that prejudicial error was committed in these particulars. We think it is extremely doubtful whether there was any evidence in the record even tending to establish that in a long wall mine of the character of the one here in question cross cuts and stoppings thereof were essential. But be this as it may, certain is it that there is no evidence whatever in the record tending to support the claim that the absence of cross cuts and stoppings in the mine in question was in any wise the cause of the accumulations of gas or the retention of the accumulated gas from the explosion of which Fulton was killed. We are also of opinion that there was nothing in the evidence which would have justified the inference that the absence of the wheel from the valve, forming part of the mechanism to operate the ventilating fan, was the proximate cause of the presence of the gas in the west roadway where Fulton was killed. The uncontradicted testimony showed that but a very brief interval, a minute or two, elapsed before a wrench was obtained, and the distance to the point where the gas had accumulated precludes the possibility of saying that the evidence tended to show that the absence of the wheel could have been the proximate cause of the accident. Under this condition of things we find it impossible to say that prejudicial error did not result. Maryland v. Baldwin, 112 U.S. 490, 493. And, of course, in a case like the one we are considering we cannot maintain the verdict, as might be done in a criminal case upon a general verdict of guilty upon all the counts of an indictment. Goode v. United States, 159 U.S. 663. Nor does section 57 of the Illinois Practice Act, chap. 110, Rev. Stat. Illinois, support *79 the contention that errors of the character of those we have just been considering must be treated as not prejudicial. The section relied upon is as follows:
"When an entire verdict is given on several counts it will not be set aside or reversed because of any defective count, if one or more of the counts be sufficient to sustain the verdict."
This section has been held not to relate to counts which are vitally defective, but as only providing that where a declaration consists of several counts, and some of the counts contain defects not vital and yet subject to be assailed by demurrer, a party cannot wait until after the close of the evidence at the trial and, a fortiori, after verdict, and then for the first time question the sufficiency of the counts. City of Chicago v. Lonergan, 196 Illinois, 518; Consolidated Coal Co. v. Scheiber, 167 Illinois, 539. This statute of course lends no support to the contention here made that where a jury is wrongfully permitted over the objection of the opposing party to take into consideration in reaching a verdict counts of a declaration which have not been supported by any evidence, and where it is impossible from the record to say upon which of the counts of the declaration the verdict was based, that the judgment entered under such circumstances can be sustained upon the theory that substantial rights of the objecting party had not been invaded.
The Judgment of the Circuit Court is therefore reversed, and the case remanded to that court for further proceedings consistent with this opinion.


                                                                                FILED
                                                                                May 07, 2018
                                                                                03:12 PM(CT)
                                                                              TENNESSEE COURT OF
                                                                             WORKERS' COMPENSATION
                                                                                CLAIMS

           TENNESSEE BUREAU OF WORKERS' COMPENSATION
          IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                           AT NASHVILLE

Elizabeth Scharmberg,                        )   Docket No. 2018-06-0151
            Employee,                        )
v.                                           )   State File No. 56955-2016
Krog1er Co.,                                 )
               Employer.                     )   Judge Robert Durham

               EXPEDITED HEARING ORDER GRANTING BENEFITS
                        (DECISION ON THE RECORD)

        This case came before the Court for an expedited hearing. Under Rule 0800-02-
21-.02(14), Ms. Scharmberg requested the Court issue a decision on the record, and
Kroger did not object. On April 24, 2018, the Court sent a docketing notice to the parties
regarding the contents of the record. Neither party objected to any of the documents
listed in the docketing notice. Considering the record, the Court concludes it needs no
further information to make a judgment.

        The sole issue is whether Ms. Scharmberg is entitled to pain management
treatment from Dr. James Eby as recommended by authorized physician Dr. Tarek
Elalayli. The Court holds that Ms. Scharmberg established she would likely prevail at
trial regarding this issue and orders Kroger to authorize treatment with Dr. Eby.

                                   History of Claim

        On July 26, 2016, Ms. Scharmberg tripped and fell while working for Kroger. She
claimed multiple injuries, and Kroger accepted her claim as compensable. Kroger
initially authorized Dr. Howard Nevels to provide treatment. When conservative
treatment failed to alleviate her pain, Dr. Nevels referred her for pain management.
Kroger provided a panel, and Ms. Scharmberg chose Dr. Jeffrey Hazlewood.

       Dr. Hazlewood evaluated Ms. Scharmberg in November 2016. He determined that
she needed to see an orthopedic surgeon to evaluate her condition and stated he would
see her back "as needed."

                                            1
       Kroger then authorized Ms. Scharmberg to treat with orthopedist Damon Petty,
M.D. Dr. Petty determined that her complaints were primarily due to cervical
radiculopathy, which he related to her work accident, and he recommended she see a
spine specialist.

       Kroger provided a panel of neurosurgeons, and Ms. Scharmberg chose Dr. Gray
Stahlman. For unexplained reasons, Dr. Stahlman did not see her, so Ms. Scharmberg
then chose Dr. Robert Weiss. Dr. Weiss believed that her cervical spine issues were
"long-standing and degenerative," and he had nothing to offer her.

       Despite Dr. Weiss' opinion, Kroger offered another panel of neurosurgeons, and
Ms. Scharmberg selected Dr. Elalayli. Dr. Elalayli felt that Ms. Scharmberg should avoid
cervical spine surgery, and on November 29, 2017, he referred her to physiatrist James
Eby, M.D., for pain management. Kroger did not offer a panel of physicians within three
business days of Dr. Elalayli's referral. However, Kroger refused to authorize Dr. Eby,
stating that Dr. Hazlewood was already her authorized physiatrist. On January 24, 2018,
Dr. Elalayli completed a referral to Dr. Hazlewood, stating that Dr. Hazlewood saw Ms.
Scharmberg in the past. Ms. Scharmberg requests that Kroger authorize Dr. Eby.

                       Findings of Fact and Conclusions of Law

       Ms. Scharmberg need not prove every element of her claim by a preponderance of
the evidence to obtain relief at an expedited hearing. Instead, she must present sufficient
evidence that she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. §
50-6-239(d)(l) (2017); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

      Two statutory sections are relevant to the issue at hand: Tennessee Code
Annotated sections 50-6-204(3)(A)(ii) and 50-6-204(E). They respectively state:

       When necessary, the treating physician selected in accordance with this
       subdivision (a)(3)(i) shall make referrals to a specialist physician, surgeon,
       or chiropractor and immediately notify the employer. The employer shall
       be deemed to have accepted the referral, unless the employer, within three
       (3) business days, provides the employee a panel of three (3) or more
       independent reputable physicians, surgeons, chiropractors or specialty
       practice groups[.]

And,

       In all cases where the treating physician has referred the employee to a
       [specialist], the [specialist] to which the employee has been referred, or

                                             2
       selected by the employee from a panel provided by the employer, shall
       become the treating physician until treatment by the [specialist] concludes
       and the employee has been referred back to the treating physician selected
       by the employee from the initial panel[.]

       Here, Kroger does not dispute that Dr. Elalayli was Ms. Scharmberg's authorized
physician at the time he referred her to Dr. Eby. Further, Kroger did not object to Dr.
Eby within three business days. Thus, under the plain language of 50-6-204(3)(A)(ii),
Kroger accepted Dr. Eby as Ms. Scharmberg's authorized physician for pain
management.

       Nonetheless, Kroger argues that the statute is inapplicable, since Ms. Scharmberg
previously chose Dr. Hazlewood for pain management. However, 50-6-204(E) states that
once an authorized physician refers the employee to a specialist, that specialist becomes
the authorized physician until the employee is referred back to the original doctor. Thus,
Dr. Hazlewood's status as the authorized physician ended once he referred Ms.
Scharmberg to an orthopedist.

       Kroger might argue that Dr. Elalayli has now referred Ms. Scharmberg back to Dr.
Hazlewood, thus once again making him the authorized physician as contemplated by 50-
6-204((E). However, the Court finds this argument unpersuasive for two reasons. One,
50-6-204(3)(A)(ii) would be severely undermined if an employer were allowed to
circumvent the three-day requirement by urging the referring specialist to change his
referral weeks or even months after the fact. Second, once Dr. Elalayli referred Ms.
Scharmberg to Dr. Eby and Kroger failed to object within three days, Dr. Eby, not Dr.
Elalayli became the physician authorized by statute to provide Ms. Scharmberg's
treatment. Kroger introduced no proof that Dr. Eby referred Ms. Scharmberg to Dr.
Hazlewood. Thus, the Court rejects Kroger's position and holds that Dr. Eby is Ms.
Scharmberg's authorized physician for pain management.

      IT IS, THEREFORE, ORDERED that:

   1. Kroger shall authorize Dr. Eby to provide Ms. Scharmberg with reasonable and
      necessary medical care for her work-related injury.

   2. This matter is set for a Scheduling Hearing on June 21, 2018, at 9:30a.m. C.S.T.
      You must call 615-253-0010 or toll-free at 855-689-9049 to participate in the
      Hearing. Failure to call in may result in a determination of the issues without
      your further participation.

   3. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
      with this Order must occur no later than seven business days from the date of entry
      of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3).

                                            3
       The Insurer or Self-Insured Employer must submit confirmation of compliance
       with this Order to the Bureau by email to WCCompliance.Program@tn.gov no
       later than the seventh business day after entry of this Order. Failure to submit the
       necessary confirmation within the period of compliance may result in a penalty
       assessment for non-compliance. For questions regarding compliance, please
       contact the Workers'          Compensation Compliance Unit vm email
       WCCompliance.Program@tn.gov

ENTERED THIS THE          7th   DAY OF MAY, 2018.

                                  ~~ge
                                    Court of Workers' Compensation Claims

                                       APPENDIX

Exhibits:

       1. Medical records of Dr. Tarek Elalayli
       2. Employer's Choice ofPhysician form dated 9-24-2017
       3. Medical record of Dr. Robert Weiss
       4. Choice ofPhysician Form dated 7-27-2017
       5. Choice of Physician Form dated 5-23-2017
       6. Medical records of Dr. Damon Petty
       7. Medical records of Dr. Harold Nevels
       8. First Report of Injury
       9. Wage Statement
       10.Medical records of Dr. Jeffrey Hazlewood
       11. Affidavit of Elizabeth Scharmberg

Technical Record:

      1.    Petition for Benefit Determination
      2.    Dispute Certification Notice
      3.    Request for Expedited Hearing with attached affidavit
      4.    Ms. Scharmberg's Position Statement
      5.    Kroger's Position Statement

                                             4
                            CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Expedited Hearing Order
 Granting Benefits was sent to the following recipients by the following methods of
 service on this the ih day of May, 2018.

Name            Certified   Email               Email Address
                Mail
Andrea Meloff                       X           ameloff@ddzlaw .com
Heather H.                          X           hdouglas@manierherod.com
Douglas

                                        P nnyS
                                        Court o · orkers' Compensation Claims
                                        WC.Cou rtCierk@tn.gov

                                          5
                           Expedited Hearing Order Right to Appeal:

     If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:

   1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
      form with the Clerk of the Court of Workers’ Compensation Claims within seven
      business days of the date the expedited hearing order was filed. When filing the Notice
      of Appeal, you must serve a copy upon all parties.

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
      website or any Bureau office) seeking a waiver of the fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
      result in dismissal of the appeal.

   3. You bear the responsibility of ensuring a complete record on appeal. You may request
      from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
      the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
      it with the court clerk within ten business days of the filing the Notice of
      Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
      parties within ten business days of the filing of the Notice of Appeal. The statement of
      the evidence must convey a complete and accurate account of the hearing. The Workers’
      Compensation Judge must approve the statement before the record is submitted to the
      Appeals Board. If the Appeals Board is called upon to review testimony or other proof
      concerning factual matters, the absence of a transcript or statement of the evidence can be
      a significant obstacle to meaningful appellate review.

   4. If you wish to file a position statement, you must file it with the court clerk within ten
      business days after the deadline to file a transcript or statement of the evidence. The
      party opposing the appeal may file a response with the court clerk within ten business
      days after you file your position statement. All position statements should include: (1) a
      statement summarizing the facts of the case from the evidence admitted during the
      expedited hearing; (2) a statement summarizing the disposition of the case as a result of
      the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
      argument, citing appropriate statutes, case law, or other authority.

For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
   Filed Date Stamp Here                     EXPEDITED HEARING NOTICE OF APPEAL
                                                  Tennessee Division of Workers' Compensation
                                                                                Docket#: - - - -- -- - --
                                                      www.tn.go v/labor-wfd/wcomp.shtm l
                                                                                State File #/YR: - - -- - - --
                                                             wc.courtclerk@tn.gov
                                                                1-800-332-2667                       RFA#: _ _ _ _ _ _ _ _____ _

                                                                                Date of Injury: - - - -- - - - -
                                                                                SSN: _______ _ ______ __

                      Employee

                      Employer and Carrier

          Notice
          Noticeisg~enthat _ _ _ _ _ _ _~~--~~~~---~~~--------~
                                    [List name(s) of all appealing party(ies) on separate sheet if necessary]

          appeals the order(s) of the Court of Workers' Compensation Claims at _ __

           -~~~-----~~~~~~~~-to the Workers' Compensation Appeals Board .
           [List the date(s) the order(s) was filed in the court clerk's office]

          Judge___________________________________________

          Statement of the Issues
          Provide a short and plain statement of the issues on appeal or basis for relief on appeal:

          Additional Information
          Type of Case [Check the most appropriate item]

                             D   Temporary disability benefits
                             D   Medical benefits for current injury
                             D   Medical benefits under prior order issued by the Court

          List of Parties
          Appellant (Requesting Party): _____________ .A t Hearing: DEmployer DEmployee
          Address:. _______________________ ______________ ___________

          Party's Phone:.____________________________ Email: _________________________

          Attorney's Name:________________________________ ___ BPR#: - - - - - - - - - - - -

          Attorney's Address:. _ _ _ _ _~~-~~~~----~~----                                             Phone:
          Attorney's City, State & Zip code: _____________________ ___________ _ _ _ __ _
          Attorney's Email :_ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ _ __ _ _ _ _ _ _ __

                                        *Attach an additional sheet for each additional Appellant*

LB-1099    rev.4/15                                        Page 1 of 2                                                     RDA 11082
Employee Name: - - - -- - - -- - - -              SF#: _ _ _ _ __ _ _ _ _ DO l: _ __             _ __

Aopellee(s)
Appellee (Opposing Party): _ _ _ _ _ _ _ _.At Hearing: OEmployer DEmployee

Appellee's Address: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Appellee's Phone:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _.Email:_ _ _ _ _ _ __ _ _ _ _ _ __

Attorney's Name:_ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ BPR#: - - - - - - - -
Attorney's Address:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Phone:

Attorney's City, State & Zip code: - - - -- - - - - - - - - - - - - - - - - - - -- -
Attorney's Email:._ _ _ _ __ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

                       * Attach an additional sheet for each additional Appellee *

CERTIFICATE OF SERVICE

I,                                             certify that I have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules of
Board of Workers' Compensation Appeals on this the              day of__, 20_ .

[Signature of appellant or attorney for appellant]

LB-1099   rev.4/1S                                Page 2 of 2                              RDA 11082
 .
ll                                                                                .I

                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-B
                                             Nashville, TN 37243-1002
                                                   800-332-2667

                                               AFFIDAVIT OF INDIGENCY

     I,                                                , having been duly sworn according to law, make oath that
     because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
     waived. The following facts support my poverty.

     1. Full Name:_ _ _ _ _ _ _ _ _ _ __                      2. Address: - - - - - - - - - - - - -

     3. Telephone Number: - - - - - - - - -                   4. Date of Birth: - - - - - - - - - - -

     5. Names and Ages of All Dependents:

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - -- -                 Relationship: - - - - - - - - - - - --

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

     6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -

             My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -

             My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -

     7. My present monthly household income, after federal income and social security taxes are deducted, is:

     $ _ _ _ _ _ _ ___

     8. I receive or expect to receive money from the following sources:

             AFDC            $            per month           beginning
             SSI             $            per month           beginning
             Retirement      $            per month           beginning
             Disability      $            per month           beginning
             Unemployment $               per month           beginning
             Worker's Camp.$              per month           beginning
             Other           $            per month           beginning

     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are: ' ;                                                     !•
                                                                             '

        Rent/House Payment $              per month     Medical/Dental $            per month

        Groceries         $         per month           Telephone       $           per month
        Electricity       $         per month           School Supplies $           per month
        Water             $         per month           Clothing        $           per month
        Gas               $         per month           Child Care      $           per month
        Transportation $            per month           Child Support   $           per month
        Car               $          per month
        Other             $         per month (describe:

10. Assets:

        Automobile              $ _ _ __ _
                                                        (FMV) -    - - - - -- - - -
        Checking/Savings Acct. $ _ _ _ __
        House                   $ _ _ _ __
                                                        (FMV) - - -- - - -- - -
              )
        Other                   $ _ _ _ __              Describe:_ _ _ __ _ _ _ _ __

11. My debts are:

        Amount Owed                     To Whom

I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.

APPELLANT

Sworn and subscribed before me, a notary public, this

_ _ _ dayof _____________ ,20____

NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ __ _

LB-1108 (REV 11/15)                                                                         RDA 11082


764 P.2d 530 (1988)
Lawrence Joe JOHNSON, Appellant,
v.
STATE of Oklahoma, Appellee.
No. F-85-3.
Court of Criminal Appeals of Oklahoma.
October 25, 1988.
Rehearing Denied December 5, 1988.
Mark Barrett, Norman, for appellant.
Michael C. Turpin, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma City, for appellee.

*531 OPINION
BRETT, Presiding Judge:
The appellant, Lawrence Joe Johnson, was tried by jury in Carter County District Court, Case No. CRF-82-319, and found guilty of Possession of Marijuana with Intent to Distribute, After Former Conviction of Two or More Felonies, in violation of 63 O.S. 1981, § 2-402(B)(1), and 21 O.S. 1981, § 51(B). He was sentenced to twenty (20) years' imprisonment. From this judgment and sentence, appellant has perfected his appeal to this Court.
On November 6, 1982, appellant was stopped by an Ardmore Police Officer for driving at an excessive rate of speed. The officer believed appellant to have been driving under the influence of intoxicating liquor and arrested him. The vehicle was impounded and inventoried, and it was later discovered that appellant was not the owner of the car.
During the inventory, police discovered a garbage bag, tied with a knot, in the trunk of the car. The bag held two freezer bags containing a green leafy substance later identified as marijuana by an O.S.B.I. criminalist. A bank bag containing Diazepam pills, some marijuana, and two brown viles was found between the driver's seat and the console. Several letters and bills addressed to appellant were in the glove compartment.
The owner of the car testified that he had loaned the car to appellant. The owner further testified that just prior to loaning the car to appellant, he had loaned it to at least five other people. Additionally, the owner stated that the tools belonging to a *532 borrower other than appellant were in the trunk.
In his first assignment of error, appellant contends that his conviction should be reversed because the State presented insufficient evidence to prove that he knowingly possessed the contraband. We disagree. "Possession" and "guilty knowledge" are among the essential elements of the crime of possession of a controlled dangerous substance. An accused who is not found to be in actual physical custody of contraband, but who knows of its presence and has the power and intent to control its disposition or use, is in "constructive possession" of drugs. Staples v. State, 528 P.2d 1131, 1133 (Okl. Cr. 1974). When an accused is not apprehended while in physical custody of contraband, proof of the "knowledge" and "control" necessary to justify an inference of "possession" (i.e., constructive possession) can be and usually is circumstantial. Id. at 1133. In addition, when evidence presented against an accused is solely circumstantial, it must exclude every reasonable hypothesis except that of guilt to be sufficient. Riley v. State, 760 P.2d 198, 199 (Okl.Cr. 1988).
Proof of knowing possession of drugs is often solely circumstantial, and thus requires that guilt be determined through a series of inferences. Yet, not every circumstantial case supports an inference that the accused knowingly possessed drugs. Whether an inference of knowing possession of drugs is legally permissible depends upon whether the accused had exclusive "access, use, or possession" of the premises where drugs are found. Staples, 528 P.2d at 1134. However, even in the absence of proof of possession and exclusive control, constructive possession may still be proven if "there are additional independent factors showing [the accused's] knowledge and control." Id. 528 P.2d at 1134. Such independent factors may consist of "incriminating conduct by the accused, ... or any other circumstance from which possession may be fairly inferred." Id. (citations omitted).
The appellant in the case at bar was not found in actual physical possession of contraband. Therefore, his guilt or innocence is to be determined according to the inferences which the circumstantial evidence against him properly supports. Appellant sets forth two arguments in support of his claim that the jury was not permitted to infer that he knowingly possessed the marijuana: first, he did not have exclusive access to the car in which the drugs were found because the car in which he was riding did not belong to him and had been frequently loaned to other individuals prior to being loaned to him; and second, no additional evidence of his knowledge and control of the contraband was presented.
While the fact that a car in which drugs were discovered had been borrowed has been a significant factor in determining whether a person found in the car had exclusive access to it (see Freeman v. State, 617 P.2d 235 (Okl.Cr. 1980)), we do not believe that this fact renders the evidence in appellant's case insufficient. Assuming that the thirty-six hour period during which he did exercise exclusive possession and control over the vehicle would not suffice to support an inference that he knowingly possessed the drugs therein, there were "additional independent factors" introduced to show appellant's knowledge of the drugs and control over the vehicle. He had the keys to the ignition as well as those to the trunk, and was the sole occupant at the time of his arrest. There were letters and bills addressed to appellant which were found in the glove compartment, suggesting that he had spent sufficient time in the car to feel comfortable storing his personal effects there. Finally, a bank bag located near appellant, between the driver's seat and the console, contained among other things marijuana  the very substance discovered in the trunk. Because the solely circumstantial evidence in the case at bar excluded every reasonable hypothesis except that of appellant's guilt, we hold that it was sufficient to support his conviction. Appellant's first assignment of error, therefore, is denied.
*533 In his second assignment of error, appellant assets that the marijuana admitted against him at trial should have been excluded as the fruit of an illegal inventory search. "[I]nventory searches are now a well-defined exception to the warrant requirement of the Fourth Amendment." Colorado v. Bertine, 479 U.S. 367, 370-72, 107 S.Ct. 738, 741, 93 L.Ed.2d 739 (1987); Starks v. State, 696 P.2d 1041, 1042 (Okl. Cr. 1985). An inventory search is reasonable under the Fourth Amendment if conducted pursuant to a standard policy or law which is designed "to secure and protect vehicles and their contents within police custody." Bertine, 479 U.S. at 370-72, 107 S.Ct. at 741; see also Starks, 696 P.2d at 1042. As long as the protective inventory procedures are not just a "subterfuge for criminal investigations," they are considered reasonable. South Dakota v. Opperman, 428 U.S. 364, 370 n. 5, 96 S.Ct. 3092, 3097 n. 5, 49 L.Ed.2d 1000 (1976).
Appellant attacks the inventory search on three grounds. First, he argues that the search should be invalidated under our holding in Avriett v. State, 699 P.2d 666 (Okl.Cr. 1985). In that case, the defendant was stopped by police because his car matched the description of a shooting suspect's vehicle. The police arrested him and conducted an inventory search of the vehicle, during which they found an unzipped bag. They analyzed the contents of a small, unlabeled, brown bottle discovered therein, and found that it contained phencyclidine (PCP). We invalidated the search on the following grounds: "The seizure and search of the bottle was unnecessary and not in furtherance of the purpose of the inventory, which could have been achieved by leaving said bottle in a zipped bag and storing it with the contents of the vehicle during impoundment." (Id. at 667); the officer had no reasonable cause to believe that the bottle contained PCP; and, the accused in that case had a reasonable expectation of privacy in the items searched.
We find Colorado v. Bertine controlling. In Bertine, the United States Supreme Court upheld an inventory search in which police opened a zipped backpack and removed and opened metal cannisters containing drugs, drug paraphernalia, and cash. Some of the rules governing inventory searches, which the Court reiterated, indicate that the rationale behind the invalidation of the inventory search in Avriett was incorrect: neither the policies behind the warrant requirement, nor the related concept of probable cause, are implicated in an inventory search (Id. 479 U.S. at 370-72, 107 S.Ct. at 741; see also Starks v. State, 696 P.2d 1041); and, police officers are not required to weight an individual's privacy interest in a particular container against the need to search the container, prior to conducting an inventory search (Bertine, 479 U.S. at 374-76, 107 S.Ct. at 743). Because the search in Avriett was erroneously invalidated, we hereby overrule that opinion and all authority consistent with it.
In a second attack upon the inventory search, appellant argues that the guidelines governing the search were not designed to "secure and protect vehicles and their contents" (Bertine, 479 U.S. at 370-72, 107 S.Ct. at 741), and were not, therefore, reasonable under the Fourth Amendment. We disagree. Directive # 80-1, introduced as Defendant's Exhibit E, states, in pertinent part:
It shall be the policy of the department that the following procedure be used when making a personal property inventory of any vehicle that might be impounded as a result of action initiated by any officer of the department:
1. Vehicle to be inventoried must be impounded as the result of that vehicle being left unattended upon a street by reason of the arrest of the driver or is so parked as to constitute a definate [sic] hazzard [sic] or obstruction of normal traffic flow.
Impounding a car such as appellant's which would otherwise be left unattended on the street is, in our opinion, a means of furthering legitimate community caretaking goals. See South Dakota v. Opperman, 428 U.S. at 368, 96 S.Ct. at 3097. And, Officer Hall's testimony that these guidelines had been read but not actually given *534 to him in writing does not invalidate his actions, since they remained within policy parameters.
In a final attempt to invalidate the inventory search, appellant argues that it was not conducted in accordance with standard police procedure. (See Opperman, 428 U.S. at 374-75, 96 S.Ct. at 3100). We have already determined that Officer Hall was following departmental guidelines when he impounded and inventoried appellant's car. Regarding the scope of the search the Supreme Court in Bertine held that an inventory involving the opening of containers is reasonable, but only if conducted "according to standardized criteria" which requires such a degree of intrusion. Id. at 372-74, 107 S.Ct. at 742 n. 6; see also Fallon v. State, 725 P.2d 603, 604-05 (Okl.Cr. 1986).
The fourth guideline in Directive # 80-1 provided the following:
3. All areas of the vehicle must be inventoried, glove compartment, luggage compartment, etc., provided entry can be gained without forcing locks.
4. Items of personal property inside the vehicle that are locked with a seperate [sic] lock, such as luggage, tool boxes, etc. shall not be entered without proper authority.
(emphasis in original). By prohibiting only the intrusion into separately locked containers, and requiring that "[e]ach item found ... be shown on the inventory report," the policy of the Ardmore Police Department was to obtain a detailed inventory of all legally discoverable items found in appellant's car. Officer Hall's decision to open the "unlocked" garbage bags and bank bag was well within the scope of standard departmental procedure. Therefore, the inventory search of appellant's car was not invalidated on this basis. Appellant's second assignment of error is denied.
In appellant's third assignment of error, he asserts that the trial court erred in admitting "other crimes" evidence of the cocaine and Diazepam pills in the bank bag which was found between the driver's seat and the console of the car. Appellant does not allege any Burks v. State, 594 P.2d 771 (Okl.Cr. 1979) violations, or claim that the "other crimes" evidence failed to meet any of the statutory exceptions to inadmissibility listed in 12 O.S. 1981, § 2404(B). Instead, he attacks the admission of this "other crimes" evidence solely on the basis that its probative value was "substantially outweighed by the danger of unfair prejudice... ." See 12 O.S. 1981, §§ 2403 and 2404(B).
We find that this evidence  especially the marijuana  was probative on the issue of whether appellant knowingly possessed the contraband in the trunk. We acknowledge the potentially prejudicial nature of the cocaine, but will not reverse appellant's conviction on the basis of improperly admitted evidence "without a showing of severe prejudice or a breach of a defendant's fundamental rights." Ozbun v. State, 659 P.2d 954, 958 (Okl.Cr. 1983) (citations ommitted). The trial court administered a limiting instruction to the jury, comparable to OUJI-CR-807 (1981), which directed them not to rely upon the "other crimes" evidence for proof of guilt or innocence. See Hall v. State, 698 P.2d 33, 38 (Okl.Cr. 1985). In light of the competent evidence supporting appellant's guilt, and the fact that he received the minimum sentence possible for his offense, we find that the improper admission of "other crimes" evidence did not prejudice appellant and thus does not warrant reversal. See Master v. State, 702 P.2d 375, 380 (Okl.Cr. 1985). Appellant's third assignment of error is, therefore, denied.
In his fourth assignment of error, appellant alleges that the trial court committed reversible error in failing to instruct the jury on his theory of defense. See Grizzle v. State, 707 P.2d 1210, 1213 (Okl. Cr. 1985). Specifically, he claims that the trial court should have administered his proposed instruction defining the quality and quantity of evidence necessary to prove the element of "possession" in the crime of possession of a controlled substance. We disagree.
"[I]t is not error to refuse requested instructions when they are substantially covered by the court's instructions." *535 Davis v. State, 640 P.2d 573, 577 (Okl.Cr. 1982). In the instant case, the trial court administered an instruction which "substantially covered" the one offered by appellant. The pertinent portion of the trial court's instruction stated:
The term "possession" means either actual physical custody or knowledge of the presence of a substance as well as power and intent to control its use. However, mere proximity to a substance is insufficient proof of possession. There must be additional evidence of knowledge and control by the defendant. Such knowledge and control may be established by circumstantial evidence, but such circumstantial evidence must exclude every reasonable hypothesis except that of guilt, and proof amounting to mere probability or even strong suspicion is insufficient. The term "knowing" means being aware of the existence of facts which cause an act to be criminal in nature. A person need not know the applicable law to do an act knowingly, but only be aware of the applicable facts.
We find that the trial court's instructions not only covered the defense theory which appellant offered in his proposed instruction, but also fairly stated the applicable law. Id. Therefore, appellant's fourth assignment of error is denied.
Appellant alleges in his fifth assignment of error that he was denied his Sixth Amendment right to the effective assistance of counsel because his attorney failed to present evidence  offered by his attorney at the first trial  that someone other than appellant owned the bank bag in which drugs were found. To succeed on a claim of ineffective assistance of counsel, the accused must demonstrate two things: that his attorney's performance was unreasonably deficient, and that such performance denied him a fair trial. Stickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Appellant argues that his attorney's failure to elicit from a witness at his second trial some information which was elicited from this witness at his first trial, constituted unreasonably poor performance.
Defense counsel's decision to elicit testimony during appellant's second trial  which was different than the testimony elicited by another defense attorney during appellant's first trial  was a tactical decision with which we will not interfere. Id. at 689, 104 S.Ct. at 2065. Because defense counsel's strategy was reasonable, it could not have prejudiced appellant. Therefore, his fifth assignment of error is denied.
In his sixth assignment of error, appellant claims that because the constitutional validity of his two prior convictions  introduced at trial for enhancement purposes  is being challenged in this Court, his sentence should be reduced so as not to reflect the enhancement. However, this Court upheld appellant's two prior convictions through an order affirming the denial of post-conviction relief (PC-84-777). Therefore, the basis for appellant's sentence is valid and his contention is without merit.
Finding no error, judgment and sentence is AFFIRMED.
BUSSEY, J., concurs.
PARKS, J., specially concurs.
PARKS, Judge, specially concurring:
I agree with the majority that the United States Supreme Court's well reasoned decision in Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987), compared to our prior decision in Avriett v. State, 699 P.2d 666 (Okla. Crim. App. 1985), represents the better approach, and is controlling here. The police inventory of the garbage bag in the trunk was pursuant to standardized police departmental procedures, and legitimately furthered the government's interest in securing the property to guard against claims of theft, vandalism, or negligence. Bertine, at 372-74, 107 S.Ct. at 742. However, I disagree with the majority's statement that "the search in Avriett was erroneously invalidated... ." Majority, at 533. It is unfair to criticize the Avriett opinion in light of Bertine, which was decided some twenty (20) months later. I would adopt the Bertine approach and overrule Avriett, and any other prior case, only to the extent such is *536 contrary to Bertine. Accordingly, I concur.


171 Cal.App.2d 173 (1959)
THE PEOPLE, Respondent,
v.
MIKE O'MALLEY BLANKENSHIP, Appellant.
Crim. No. 6504.
California Court of Appeals. Second Dist., Div. Three.
June 8, 1959.
 Leslie & Bernson for Appellant.
 Stanley Mosk, Attorney General, Norman H. Sokolow and David B. Allen, Deputy Attorneys General, for Respondent.
 SHINN, P. J.
 In a jury trial, Mike O'Malley Blankenship was convicted of violating Vehicle Code, section 480, and was granted probation on condition that he serve 90 days in the county jail. He appeals from the order denying his motion for new trial and has noticed an appeal from the verdict.
 The sole contention on the appeal is the insufficiency of the evidence to establish appellant's guilt of a hit and run violation. As we shall see, this contention is destitute of merit. *174
 John Kingston was riding his motorcycle north on Reseda Boulevard shortly after midnight on May 1, 1958. He came upon a late-model light-colored Cadillac convertible with a white top; a man and a woman were in the car; the man was driving; the driver had a crew hair cut and was wearing a military shirt with emblems on it; appellant was the driver. Upon being shown a photograph of a Cadillac registered to Mrs. Blankenship, Kingston testified that it resembled the convertible he saw on May 1st.
 As Kingston started to pass the Cadillac, appellant told him to "get the God damn bike off the road and keep it away from his car." Kingston dropped behind the car and followed it for several blocks in the same lane of traffic at a distance of one or two car lengths. Suddenly, between intersections, the Cadillac's stop lights flashed and the vehicle skidded to a stop. Kingston applied his brakes and swerved to the right to avoid a collision, but his motorcycle struck the right rear end of the Cadillac, precipitating him to the ground and pinning him under the motorcycle. He sustained a compound fracture of the leg and other injuries. On cross-examination, Kingston admitted having been convicted of three violations of Penal Code, section 288, for which he was placed on probation.
 The collision was witnessed by a Mr. Azar and his mother, who were driving north on Reseda in a pick-up truck in the same lane of traffic as the two vehicles, about 150 feet behind the motorcycle. They saw the car's rear stop lights flash briefly and the automobile skid to a halt; there was no obstacle ahead of the car; the sound of the collision was quite loud; the car moved forward slightly on impact; then it sped away from the scene. No one got out of the car to identify himself or to render assistance to Kingston. Neither witness could identify the make of the car or the driver; they saw only one person in the car and could not tell whether the driver was a man or a woman. It was brought out on the cross-examination of Mr. Azar that at the preliminary hearing he had stated that Kingston was traveling behind the right side of the car, whereas he testified at the trial that the motorcycle was moving in line with the center of the car prior to the accident.
 Police officers investigating the collision obtained from Kingston a description of the Cadillac and its driver. About half an hour later, Officer Giacopuzzi observed a car answering the description going south on Reseda Boulevard three-quarters of a mile north of the scene; it made a right turn off Reseda a block north of the scene. Giacopuzzi halted the car *175 and examined it with his flashlight; there were some fresh marks on the rear end. Appellant was sitting in the front seat; his hair was cut short and he was wearing a military shirt with shoulder emblems. Mrs. Blankenship was also in the front seat; appellant's brother was behind the wheel. When the officer asked them to accompany him to the scene of the accident the Blankenships complied.
 The Cadillac and the motorcycle were examined at the scene by Officer Hatter, who was one of the investigating officers in the case. The motorcycle had been severely damaged. The left crash bar was bent back against the motor; the seat was torn off; the left handle bar was bent; the front fender and left foot rest had also been damaged. On the right rear fender of the Cadillac, near the taillight assembly, were what appeared to be splotches of blood; there was a black mark over the top of the rear bumper which extended into the right taillight assembly; scratches and dents were visible along the assembly. Officer Hatter measured and photographed two sets of skid marks left by the vehicles involved in the collision; the car left 37 1/2 feet of four-wheel locked straight skid marks; the motorcycle left 39 feet of marks which ran between the tire marks of the car for half of that distance, then swerved to the right. However, Hatter did not compare the width of the automobile skid marks with the width of the Cadillac's tires. There was opinion evidence given by an expert that the car had been traveling at 24 miles an hour prior to the accident and the motorcycle slightly faster.
 The two vehicles were impounded and subjected to further examination the following day by Officer Carter, a qualified police chemist. Carter tested some reddish-brown stains located just above the right tail light of the Cadillac and found them to consist of human blood; there was insufficient blood to perform a blood type test; the stains could have been more than three or four days old. From the shape of the stains, Carter concluded that the blood was traveling upward when it hit the car. The witness removed a black substance which had left a mark near the car's right taillight and compared it with the left handle grip of the motorcycle; in his opinion, they were of the same general type of rubber-like material. Carter compared some cloth fibers removed from the right taillight assembly with fibers from Kingston's cap; the substances were similar and could have come from the same source. He also compared metal transfers on the left crash bar of the motorcycle with the metallic content of the Cadillac's exhaust port, *176 which had been damaged in the collision. In Carter's opinion, the substances were of the same composition. He found no metal transfers on the car.
 Photographs showing the skid marks and the damage to the vehicles and slides containing some of the materials compared by Officer Carter were received in evidence as exhibits.
 Appellant and Mrs. Blankenship related their activities on the morning of May 1st. They went to a barroom around 11 p. m. and left shortly after midnight, proceeding north on Reseda Boulevard. Mrs. Blankenship was driving. The top was up, the rear flap closed, the right window shut and the left window partially open. Some motorcyclists, among them Kingston, followed them along Reseda. When Mrs. Blankenship pulled over to the right and stopped, Kingston pulled in on the right side of the car. Appellant rolled down the window and asked Kingston if he was a policeman; Kingston said nothing. Appellant then exchanged seats with his wife and drove on. As they proceeded, Kingston drove up on the left hand side of the car and asked appellant if he had a badge; when appellant denied having a badge, Kingston said that he had one. Kingston rode his motorcycle next to the driver's side of the car for about a mile, cursing and trying to get appellant to pull over to the right, which he refused to do. After a while, they no longer saw any motorcyclists.
 The Blankenships denied having been in a collision. They did not recall hearing any loud noise while going north on Reseda; they did not make any sudden stops and they did not stop in the middle of an intersection. They went to the home of appellant's brother and were on their way to take Mrs. Blankenship home when they were stopped by the police. After the Blankenships accompanied the officer to the scene of the accident, Mrs. Blankenship examined the rear end of the car but she did not notice anything unusual. Appellant admitted having said to Officer Hatter: "I don't care to look for any blood on the car. If there is any here, I don't know how it got there." But he denied telling the officer that he had said all he was going to say and that the officer could draw his own conclusions. Appellant's brother testified that he saw no skid marks at the scene of the accident and that he found none when he returned later in the morning to examine the highway.
 A Dr. Murasky testified on behalf of appellant that Kingston told him at the receiving hospital that he had consumed five or six beers during the evening and had had no solid food *177 since noon. However, neither Mr. Azar nor Officer Hatter noticed an alcoholic odor on Kingston's breath.
 There is no substance to appellant's contention that the evidence was insufficient to establish guilt.
 [1] The factual questions were whether appellant was driving the car which was struck by Kingston's motorcycle and whether, knowing that Kingston had been injured, he failed to stop, identify himself and render necessary aid. (Veh. Code,  480, 482, subd. a.) There was circumstantial evidence from which the jury could logically conclude that Mrs. Blankenship's Cadillac sustained damage as a result of a collision with Kingston's vehicle and Kingston identified appellant as the driver of the car. Although Blankenship denied knowledge of any accident, knowledge could properly be inferred from the circumstances of the collision. (People v. Moody, 93 Cal.App.2d 66, 70 [208 P.2d 692]; People v. Kuhn, 139 Cal.App.2d 109, 112 [292 P.2d 964].) The fact that Kingston was following closely behind the Cadillac, together with the further facts that the collision was forcible and was audible at a distance of 150 feet, amply warranted the jury in its determination that appellant knew Kingston had been injured and that his failure to stop was a deliberate one.
 The appeal from the verdict is dismissed and the order denying appellant a new trial is affirmed.
 Wood (Parker), J., and Vallee, J., concurred.


                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                JUL 31 1997
                                     TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                Clerk

 FREDERICK J. AMIRAULT,

           Plaintiff-Appellant,

 v.                                                           No. 96-2181
                                                       (D.C. No. CIV-95-422-MV)
 CITY OF ROSWELL, a municipal                                (New Mexico)
 corporation of the State of New Mexico,

           Defendant-Appellee.

                                  ORDER AND JUDGMENT*

Before PORFILIO, Circuit Judge, LUCERO, Circuit Judge, and McWILLIAMS,
Senior Circuit Judge.

       Despondent because of a failed romance, Frederick J. Amirault (“Amirault”), then

age 40, attempted suicide by pouring gasoline on his jacket and igniting himself. His

suicidal efforts failed, but, at the same time, he did suffer some physical and emotional

injury. Thereafter, Amirault filed the present action in the United States District Court for

the District of New Mexico against the City of Roswell (“City”). The action was based

on the alleged misconduct of certain police officers of the City.

       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3
       Although the complaint is not a part of the record on appeal, it would appear that

in his original complaint Amirault asserted three claims for relief against the City, and the

City only: a claim based on the Americans with Disabilities Act (“ADA”), 42 U.S.C. §

12101; a civil rights claim based on 42 U.S.C. § 1983; and a third claim based on New

Mexico tort law. By an amended complaint, Amirault added a fourth claim based on

spoliation of evidence by the City.

       The City apparently filed an answer to the complaint, though such is not in the

record before us. It is agreed that the City also filed a Rule 12(b)6 motion to dismiss the

complaint and a motion for summary judgment under Rule 56, although, again, neither is

in the record before us. Various depositions, or parts thereof, together with affidavits and

the like, were submitted to the district court in support of, and in opposition to, the City’s

motions. The district court treated the City’s motions as a motion for summary judgment,

granting the motion and entering summary judgment in favor of the City. In so doing the

district court dismissed “each and every count . . . of Plaintiff’s cause . . . in its entirety

with prejudice.” The district court’s detailed memorandum and order is not published in

Federal Supplement, but does appear in Westlaw as Amirault v. City of Roswell, No. 95-

CV-422, 1996 WL 391986 (D.N.M. July 11, 1996). Amirault appeals. We affirm.

       The background facts out of which the present controversy arises are not in

dispute. The record before us discloses that on June 9, 1993, the police department of the

City was informed by Amirault’s estranged girlfriend that Amirault might have suicidal

                                               -2-
intentions. Police officers employed by the City immediately contacted Amirault’s

mother, with whom Amirault resided, in an effort to locate him. When the officers went

to Amirault’s home, they learned from his mother that Amirault was not at home. When

asked, Amirault’s mother stated that she did not believe her son was suicidal. This

contact resulted in an all points bulletin placing Amirault on a “welfare” alert as

“threatening suicide.” It would appear that sometime after midnight on June 10, 1993, the

police again contacted Amirault’s place of residence and found that Amirault had not

returned to his home. Again, his mother informed the police that she did not believe that

her son was suicidal, and that he often stayed away all night.

       On June 10, 1993, at about 6:45 a.m., Officer Tracey Laney found Amirault sitting

in his car at a city baseball field. Amirault had a gasoline can in the rear seat of his

vehicle. Officer Laney observed Amirault writing on a legal pad. Meanwhile backup

officers arrived. At that time Amirault told the officers that he had thought of committing

suicide but had changed his mind. The officers called headquarters and were advised of

the fact that Amirault’s estranged girlfriend had called the previous evening and reported

him as suicidal and were further advised of the contacts by the police with Amirault’s

mother on the previous evening.

       After further conversation between the officers and Amirault, the officers,

believing Amirault was not going to attempt suicide, said he was free to go and Amirault

                                             -3-
left. About an hour later Amirault, after driving to his estranged girlfriend’s backyard,

poured gasoline on his jacket and struck a match, lighting himself on fire.

       In dismissing Amirault’s ADA claim, the district court spoke as follows:

                     Title II of the ADA generally prohibits a public entity
              from excluding a qualified individual with a disability from
              services, programs, or activities of the public entity. There is
              no question that the City of Roswell and its police force
              constitute a public entity under the ADA. To establish a
              violation of Title II of the ADA, Plaintiff must prove the
              following:
                     (1) that he is a qualified individual with a
                     disability;
                     (2) that he was either excluded from participation in or
              denied the benefits of some public entity’s services,
              programs, or activities, or was otherwise discriminated
              against by the public entity; and
                     (3) that such exclusion, denial of benefits, or
                     discrimination was by reason of the plaintiff’s
                     disability. (footnotes omitted)

Amirault, 1996 WL 391986, at *4.

       The district court then went on to hold that, assuming Amirault did suffer a mental

disability within the meaning of the ADA, he had nonetheless not met the requirements

set forth in (2) and (3) of the above quotation. Specifically, the district court stated that

Amirault had not made a sufficient showing that any municipal service or benefit was

denied him solely because of any disability. We are in accord with the district court’s

reasoning on Amirault’s ADA claim. The record simply does not suggest that the police

somehow had a duty to take Amirault into custody and transport him to the City’s health

                                             -4-
clinic for evaluation and that by failing to do so Amirault was denied access to any

“service, benefit, or program” of the City. In this regard, the district court then went on to

hold that most certainly there was no showing that any possible denial of benefits or

services was because of Amirault’s disability. We agree.

       The district court dismissed Amirault’s civil rights claim, 42 U.S.C. § 1983, and,

on appeal, Amirault does not challenge that dismissal order.

       At oral argument, counsel for Amirault indicated that he was primarily concerned

with that part of the district court’s order dismissing Amirault’s claim based on state tort

law, which he said was the “gravamen” of Amirault’s complaint, and not the dismissal of

his ADA claim. In any event, the district court held that the City, under New Mexico law,

was immune from suit.

       The starting point on Amirault’s state tort claim is that the state is immune from

suit unless the state clearly waives its immunity. N.M. Stat. Ann. § 41-4-4 (1996). N.M.

Stat. Ann. § 41-4-12 (1977), relied on by Amirault, provides as follows:

              The immunity granted pursuant to Subsection A of Section
              41-4-4 NMSA 1978 does not apply to liability for personal
              injury, bodily injury, wrongful death or property damage
              resulting from assault, battery, false imprisonment, false
              arrest, malicious prosecution, abuse of process, libel, slander,
              defamation of character, violation of property rights or
              deprivation of any rights, privileges or immunities secured by
              the constitution and the laws of the United States or New
              Mexico when caused by law enforcement officers while
              acting within the scope of their duties.

                                             -5-
       In this regard, the district court held that N.M. Stat. § 41-4-12 was inapplicable

because the City “cannot be deemed to have waived immunity . . . for an alleged failure to

arrest and/or involuntarily commit Plaintiff.” Amirault, 1996 WL 391986, at *13. In this

connection, the district court stated that “it is clear that immunity is not waived under

New Mexico’s Tort Claims Act for self-inflicted injury, which is the linchpin of this

case.” Id. We agree. It is hard to see how Amirault’s self-inflicted injuries were

“caused” by the City. Also, the district court, citing New Mexico cases, rejected the

further suggestion by Amirault that the police officers were “health care providers” and,

as such, liable under N.M. Stat. Ann. § 41-4-10 (1978). We agree with the district court’s

reasoning and we are not inclined to disturb its understanding of local New Mexico law.

       Since the City is immune from suit for the self-inflicted injuries sustained by

Amirault, it follows that it is also immune from suit for spoliation of evidence.1

       Judgment affirmed.

                                           ENTERED FOR THE COURT

                                           Robert H. McWilliams
                                           Senior Circuit Judge

       1
        This claim was based on the fact that the City was unable to produce tapes of
certain communications between its police officers and headquarters regarding the case.

                                             -6-