*/
Workers’
Compensation Board
OPINION ENTERED: July 27,
2018
CLAIM
NO. 201500236
BERNABE
D. AGUIRRE PETITIONER
VS. APPEAL FROM HON. STEPHANIE L. KINNEY,
ADMINISTRATIVE
LAW JUDGE
NATIONAL
DRYWALL, LLC;
R
& T ACOUSTICS; AND
HON.
STEPHANIE L. KINNEY,
ADMINISTRATIVE
LAW JUDGE RESPONDENTS
OPINION
REVERSING & REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and
RECHTER, Members.
ALVEY, Chairman. Bernabe
Aguirre (“Aguirre”) appeals from the February 9, 2018 Opinion and Order on
Remand rendered by Hon. Stephanie L. Kinney, Administrative Law Judge (“ALJ”),
dismissing his claim after finding the December 18, 2014 work accident was primarily
caused by voluntary intoxication from cocaine.
Aguirre also appeals from the April 24, 2018 order denying his petition
for reconsideration.
On
appeal, Aguirre essentially argues the record does not contain substantial evidence
supporting the ALJ’s determination.
Because the ALJ failed to identify other evidence in the
record on remand as directed by the Board to satisfy the standard set forth in KRS 342.610(3), we reverse the
dismissal of Aguirre’s claim, and remand for a resolution of all remaining
issues on the merits.
Aguirre
filed a Form 101 on February 24, 2015, alleging he injured his right foot, left
knee and right shoulder on December 18, 2014, when an
extension ladder on which he was working became unstable, causing him to
fall. The January 7, 2015 First Report
of Injury attached to the Form 101 indicates, “EE was on a ladder and fell 11 ft
when his foot got caught in the ladder, resulting in fracture to the
foot.”
At the time of his
accident, Aguirre worked for National Drywall LLC (“National Drywall”) as a
carpenter/general laborer. Several
parties were joined to the claim since National Drywall did not carry workers’
compensation coverage in Kentucky at the time of the accident. Ultimately, R & T Acoustics acknowledged
it is the up-the-ladder employer pursuant to KRS 342.610(2). R & T Acoustics filed a Form 111 and
Special Answer raising the affirmative defense of voluntary intoxication
pursuant to KRS 342.610(3). The claim
was initially assigned to Hon. Gregory Allen, Administrative Law Judge, and
then re-assigned to the ALJ on May 16, 2016.
Aguirre testified,
through an interpreter, by deposition on April 14, 2015, and at the hearing
held June 22, 2016. Aguirre completed
the sixth grade and has lived in the United States for approximately thirty-two
years. Aguirre began working for
National Drywall in July or August 2013 framing and hanging sheetrock. National Drywall first assigned him to work at
a large factory in Georgia, where Aguirre resided at the time. That assignment lasted approximately three
months. National Drywall then assigned
Aguirre to a large project in Louisville, Kentucky, involving the construction
of several new businesses, including an H.H. Gregg store. This job began in July 2014, and Aguirre
rented an apartment in Louisville while he worked on the project.
Aguirre was injured on
December 18, 2014, while working for National Drywall. At his deposition, Aguirre provided the
following testimony regarding the circumstances surrounding his fall:
A: That
day, the company RYT [sic], who gave the work to National, they sent me up on
the roof to fix some holes - - open some holes behind the H.H. Gregg sign. It was high, about 15 feet. I put the ladder and - - an
extension ladder - - I had to go up on the roof to open these holes. When I was climbing up, and when I was at the
top of the ladder, the ladder slipped.
One of the rungs of the ladder caught my right foot around my
ankle. I fell. I had severe pain . . . . I called the
superintendent that I had had an accident.
And so they took a piece of equipment to get me off of the roof - - -
THE INTERPRETER: The accident
occurred on the roof itself because the ladder slipped and caught his foot in
the rung, and on the - - so they had to bring a piece of equipment over to get
up onto the roof and lift him off the roof and bring him down to the ground.
Q: So
you were on a ladder that was on top of the roof?
A: It
was a ladder that was on the roof going from the roof up towards the sign. So it was a ladder on the roof.
Q: Okay. And when you fell, you fell to the roof? You didn’t fall to the ground?
A: Yes.
THE INTERPRETER: He was on the
roof.
Aguirre
provided similar testimony at the hearing:
A: A guy asked me to make some holes over
the road, the rod. And I went on my own
and I put the extension ladder. I could,
you know, go up about 15 feet. And when
I went up, and I was going to make the hole, the ladder slipped. And, then, when I fell, my - - the ladder
caught that foot, and, then, it fell on top of this (indicate). And, then, I fell and I fell on this side,
and I couldn’t see anything . . .
Q: So
the ladder slipped and you fell?
A: Yes.
Q: What
part of your body was injured?
A: When
I fell, like I first injured my foot; I injured my arm and this knee.
No
testimony was elicited regarding the weather conditions on December 18, 2014,
the ladder’s condition, or the condition of the roof upon which the ladder was used. Aguirre indicated several co-workers worked
with him on the day of the accident, but no one else witnessed the accident on
the roof. Aguirre refused to answer
whether he ingested cocaine or how often he used the drug prior to the
fall.
Aguirre
was taken to the Norton Immediate Care Center, where x-rays revealed several
fractures in his right foot and ankle.
The facility placed Aguirre in a brace and crutches. Aguirre did not return to any work until the
latter part of October 2015. Aguirre
does not believe he can perform all of his pre-injury job duties in his current
condition.
R
& T Acoustics filed the December 18, 2014 records from Norton
Healthcare. Dr. Songyan Mao noted
Aguirre fell at
work and injured his right ankle and foot.
Right foot and ankle x-rays revealed a proximal fifth metatarsal
fracture, a distal fibular fracture and a calcaneal fracture. Aguirre was prescribed pain medication, as
well as a splint air cast and crutches.
He was also referred to an orthopedic surgeon. As part of his evaluation at Norton
Healthcare, a urine drug screen was conducted.
The specimen result certificate indicated the results were positive for
cocaine, with a screening cutoff of 300ng/Ml and a confirmation cutoff of
150ng/Ml.
Aguirre filed the December
16, 2015 report of Dr. Jules Barefoot, who noted he reported he fell
approximately twelve to fifteen feet off a ladder at work, landing on his
feet. Dr. Barefoot diagnosed a right
foot proximal fifth metatarsal fracture, a right distal fibular fracture, a right
calcaneal fracture and osteoarthritis of the right foot and ankle due to the
December 18, 2014 fall at work. He found
Aguirre has reached maximum medical improvement (“MMI”) if no further treatment
is provided, and he assessed a 7% impairment rating for the right lower
extremity pursuant to the 5th Edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”).
R & T Acoustics
filed the October 13, 2015 report of Dr. Richard Sheridan, who noted Aguirre
was climbing a ladder to get onto the roof, when it slid and he fell twelve to
fifteen feet, landing on both feet. Dr.
Sheridan diagnosed a right ankle fracture, right foot multiple fractures and a
right shoulder strain. He stated the
diagnoses “were caused by the event at work on 12/18/14.” He further stated as follows:
From a medical standpoint, the
presence of cocaine in Mr. Aguirre’s body could
undermine his ability to perform his work duties safely. The presence of cocaine in the quantities documented
could have been a significant
contributing factor in his injury. It could have caused his injury to be
worse than if he had not been impaired.
(Emphasis added).
Dr. Sheridan found
Aguirre reached MMI on June 18, 2015 and likewise assessed a 7% impairment
rating pursuant to the AMA Guides for the lower extremity. He declined to assign permanent restrictions
or recommend additional medical treatment.
R & T Acoustics filed
the May 13, 2016 records review report of Dr. Saeed A Jortani, Ph.D. He reviewed the medical records, Aguirre’s
deposition testimony, and literature relevant to cocaine and its effects. He noted the fall at work and the urine
sample resulting in a positive cocaine metabolite test. Dr. Jortani provided the following analysis:
. . . [T]here is no information on the last time he ingested
cocaine nor is it known whether he is a frequent abuser of cocaine or he uses
it sporadically and occasionally. Since
we do not have a blood test for cocaine and its metabolite testing, it is not
feasible to establish whether the positive test was due to a recent ingestion
or use of cocaine the day before!
Regardless, I have provided the following
synopsis on the acute and chronic effects of cocaine ingestion for your review
and consideration:
Cocaine is a stimulant and an anesthetic
with sympathomimetic properties both centrally and peripherally. Its acute effects diminish rapidly; however,
recent evidence suggests considerable effects on the central nervous system,
cardiovascular system and other physiologic functions due to chronic use. Some of these effects have been demonstrated
months after the individuals have been abstinent from the drug. Due to its vasoconstrictive properties,
cocaine limits the blood supply to various regions of the brain. Even in individuals becoming abstinent after
a period of cocaine abuse, researchers have shown that blood flow deficits to
the various regions of the brain persist months after the last use of cocaine. The reported abnormalities in brain function
include impairments in memory, attention, concept formation, reaction time and
cognition . . . . . Furthermore, Bolla et al (2000) have reported that cocaine
abuse is associated with decrements in psychomotor speed, visuoperception,
executive function, manual dexterity and memory. In addition, impairment in inhibiting
inappropriate behavior has also been attributed as one of the untoward effects
of chronic cocaine abuse . . . . Therefore, physiological effects of acute
cocaine abuse on the brain can result in long-lasting consequences involving
impairment in various brain functions including cognition and memory even in
abstinence.
Positive cocaine metabolite test signifies
ingestion during the period of 1 hour all the way back to 24 hours prior to the
accident. . . . If Mr. Aguirre had ingested cocaine within a couple of hours
prior to the accident, he would have been expected to be under the acute
effects of cocaine intoxication. In this
situation, cocaine is expected to result in the above-mentioned
impairments. Another scenario is that he
had ingested cocaine 2-5 hours prior to the accident. During this time, the person experiences the
post cocaine crash period, which results in central nervous system
depression. Obviously, if cocaine had
been ingested prior to these two periods, the likelihood of acute effects of
cocaine ingestion is less. In cocaine
abusers, recent evidence also suggests that its chronic effects on the brain
function persist even during the period of abstinence following the last use.
Keeping in mind the result of the testing
of his urine on the sample collected at the Norton Care Center, it is my
opinion with reasonable scientific probability that he was more likely than not
an active user of cocaine. What is not
clear here is the time of last ingestion as well as the frequency of
abuse. If we had these two pieces of
information, it would be feasible to establish whether the voluntary ingestion
of cocaine as demonstrated by the urine positive test result was the proximate
cause of the injury as the result of his fall on December 18, 2014. Not having the information, we can only
conclude that by ingesting cocaine at some point during the period of 1-24
hours prior to testing, Mr. Aguirre put himself at greater risk of falling
while being on the top of the ladder and the resulting fall and injuries.
The ALJ rendered an
opinion on August 22, 2016, dismissing the claim. After reviewing the relevant statutory and
case law, the ALJ relied upon Drs. Sheridan and Jortani in finding the work
accident was caused by Aguirre’s voluntary ingestion of cocaine, as noted by
the urine drug screen, pursuant to KRS 342.610(3). The parties did not file a petition for
reconsideration, and Aguirre appealed to the Board.
This Board rendered an
opinion on December 16, 2016, vacating and remanding the claim, stating in
relevant part as follows:
KRS
342.610(3) relieves the employer from liability if a worker’s injury is
“proximately caused primarily by voluntary intoxication as defined in KRS
501.010.” In Advance Aluminum Company v. Leslie, 869 S.W.2d 39, 40 (Ky.
1994) the Kentucky Supreme Court held KRS 342.610 "encompasses situations
including horseplay, intoxication, or other employee conduct shown to have been
an intentional, deliberate action with a reckless disregard of the consequences
either to himself or to another." The employer bears the burden of proof
for any affirmative defense raised, including voluntary intoxication. Whittaker
v. Hardin, 32 S.W.3d 497 (Ky. 2000). In order to sustain that burden, the
employer must go forward with substantial evidence sufficient to convince
reasonable people. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
Since R & T Acoustics was successful in that burden, the question on appeal is whether
there was substantial evidence of record
to support the ALJ’s decision. Wolf Creek Collieries v.
Crum, 673 S.W.2d 735 (Ky. App. 1984). “Substantial evidence” is defined as evidence of relevant consequence having the fitness to induce conviction in the minds of reasonable
persons. Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky.
1971).
. . . .
KRS 342.610(3), which sets out the intoxication defense, provides as follows:
Liability for compensation shall not apply where injury… to the
employee was proximately caused primarily by voluntary intoxication as defined
by KRS 501.010 or by his willful intention to injure or kill himself or
another.
KRS 501.010(2) defines intoxication as “. . . a
disturbance of mental or physical capacity resulting from the introduction of
substances into the body.”
A finding of intoxication alone will not
operate to bar a claim for benefits. KRS
342.610(3) mandates there be a finding that the intoxication was the
"proximate cause" that “primarily” lead to the accident. In other
words, proof of intoxication alone is insufficient. The intoxication must have
been the primary causal factor in the
accident. See Wilson v. Wizor,
544 S.W.2d 231 (Ky. 1976); Ford Motor Co. v. Smith, 143 S.W.2d 507 (Ky.
1940).
KRS 342.610(3) is unambiguous on its face;
therefore, statutory construction mandates following the provision’s plain
meaning. Layne v. Newberg, 841 S.W.2d 181 (Ky. 1992); Claude Fannin
Wholesale Co. v. Thacker, 661 S.W.2d 477 (Ky. App. 1983). As a reviewing
body, we must give credence to the actual words used by the legislature and
avoid offering alternative interpretations the reviewing body might believe to
be a better result. Kentucky
Association of Chiropractors v. Jefferson City Medical Society, 549 S.W.2d
817 (Ky. 1977); Overnite Transportation Co. v. Gaddis, 793 S.W.2d 129
(Ky. App. 1990).
We
vacate and remand for additional findings.
Here, the ALJ relied upon Drs. Jortani and Sheridan to conclude
the "work accident was caused by Plaintiff's voluntary ingestion of
cocaine." However, a review of the opinions of Drs. Jortani and Sheridan
reveal neither one support a finding Aguirre's cocaine use was the proximate
cause “primarily” leading to the accident. See
Wilson v. Wizor, supra; Ford Motor Co. v. Smith, supra.
Dr. Jortani’s opinions on this issue are equivocal. In his May 3, 2016, report,
Dr. Jortani stated that "it would be feasible to
establish whether the voluntary ingestion of cocaine as demonstrated by the
urine positive test result was the proximate cause of the injury" if the
time of last ingestion of cocaine as well as the frequency of Aguirre's cocaine
abuse was known. (emphasis added). However, he acknowledged that information is
unknown. Consequently, Dr. Jortani stated the "only" conclusion
that can be drawn from what is known is "that by ingesting cocaine at some
point during the period of 1-24 hours prior to testing, Mr. Aguirre put himself
in a greater risk of falling while being on the top of the ladder and the
resulting fall and injuries." (emphasis added).
Similarly, Dr. Sheridan is non-committal in his October 13,
2015, report in which he opined the presence of cocaine in Aguirre's system
"could undermine his ability to perform his work duties
safely," "could have been a significant contributing factor in his
injury," and "could have caused his injury
to be worse than if he had not been impaired." (emphasis added).
As a matter of law, the opinions of Drs. Jortani and Sheridan do
not meet the standard of proof for the affirmative defense set forth in KRS
342.610(3). Pursuant to this statute, the ALJ must find that the proximate cause "primarily" leading to
Aguirre's accident was his cocaine use utilizing the medical evidence in the
record. See Wilson v. Wizor, supra;
Ford Motor Co. v. Smith, supra. A mere statement by the ALJ that
she relied upon the opinions of Drs. Jortani and Sheridan to conclude the
cocaine in Aguirre's system caused his work accident is insufficient in light
of the fact that neither doctor definitively made such a statement. Thus, the
ALJ’s decision must be vacated and the claim remanded for a determination of
whether the opinions of Drs. Jortani and Sheridan, in concert with other
evidence in the record, satisfy the standard set forth in KRS 342.610(3). If
the evidence in the record does not satisfy this standard, Aguirre's claim
shall not be dismissed pursuant to KRS 342.610(3), and the remaining contested
issues as listed in the June 13, 2016, BRC Order must be resolved on their
merits. This Board
may not and does not direct any particular result as we are not permitted to
engage in fact-finding. See KRS
342.285(2); Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky.
1985). However, any determination must be supported by the appropriate analysis
and findings.
The December 16, 2016 opinion was
not appealed. The ALJ rendered an
opinion on remand on February 9, 2018.
After reviewing the Board’s opinion, the ALJ stated as follows:
This ALJ notes that as
fact-finder, she has the sole authority to draw reasonable inferences to be
drawn from the evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d
418 (Ky. 1985). Just as with heart
attack claims, medical evidence, while relevant and material, is not solely
determinative in claims involving the intoxication defense, but is merely an
element of “the totality of the circumstances”
which an Administrative Law
Judge must consider when determining
whether the event was caused by the work or caused by intoxication. Hudson v. Owens, 439 S.W.2d 465
(Ky. 1969); Moore v. Square D. Company, 518 S.W.2d 781 (Ky. 1974).
Plaintiff argues that
no other evidence of record, in conjunction with the opinions of Drs. Jortani
and Sheridan, is capable of supporting the intoxication defense. Plaintiff
further argues there is no evidence, other than the medical testimony, to
suggest Plaintiff’s cocaine ingestion played any role in the incident.
Conversely, the Defendant argues the totality of the circumstances (i.e.
evidence Plaintiff ingested cocaine, the impairing characteristics associated
with cocaine use, absence of evidence explaining why a ladder would slip, no
indication Plaintiff was required to perform an unusually dangerous activity
while on the ladder, lack of any witnesses, and Plaintiff’s refusal to testify
regarding when the cocaine was ingested) supports the Defendant’s allegation of
the affirmative defense of intoxication.
The ALJ has once again
reviewed the evidence of record and considered the matter extensively. This ALJ
finds Plaintiff’s voluntary ingestion of cocaine, as evidenced by the urine
drug screening, proximately caused the work accident. In making this finding,
the ALJ relies on the opinions of Drs. Jortani and Sheridan, but also bases her
finding upon the lack of any explanation as to why a non-deficient ladder,
under normal weather conditions would slip. Also, there is no indication in the
testimony that the grade of the roof Plaintiff was working on made it difficult
for him to secure the ladder.
‘[sic]KRS 342.610(3)
states that: 'Liability for compensation shall not apply where injury,
occupational disease, or death to the employee was proximately caused primarily
by voluntary intoxication as defined in KRS 501.010, or by his willful
intention to injure or kill himself or another.' KRS 501.010(2) defines
intoxication as 'a disturbance of mental or physical capacities resulting from
the introduction of substances into the body.' KRS 501.010(4) defines voluntary
intoxication as intoxication caused by substances that a person knowingly
introduces into his body, the tendency of which to cause intoxication the
person knows or ought to know unless the person introduces the substances
pursuant to medical advice or under duress.
In accordance with the
above definitions, voluntary intoxication, for purposes of the Act, means a
disturbance of mental or physical capabilities caused by substances a claimant
intentionally introduces into his body prior to injury, that he knows or ought
to know will have a tendency to cause intoxication. Voluntary intoxication in
matters of workers' compensation is not necessarily linked to levels of
substance abuse required for criminal prosecution. For purposes of KRS
342.610(3), the focus is on the level of intoxication sufficient to produce an
unsafe work environment and lead to accidents on the job. The degree of
intoxication legally required to be proven medically is relative to the facts
of the individual case. So long as there is substantial evidence to support a
finding that the particular level of intoxication in a given claim, even if
minute, proximately brought about the traumatic event resulting in the
work-related injury, the determination of the ALJ may not be disturbed on
appeal. Moreover, if a worker's voluntary intoxication is the primary cause of
an injury, the injury is not compensable under KRS Chapter 342, regardless of
whether other factors contributed to causing the injury. Campbell v. City of
Booneville, Ky., 85 S.W.3d 603 (2002).
The first report of
injury notes Plaintiff was on a ladder and fell eleven (11) feet when his foot
got caught in the ladder, resulting in left foot fractures. During his
deposition, Plaintiff testified the work accident happened as he was ascending
the ladder. There was no indication the ladder was unsteady as Plaintiff
climbed the rungs. Plaintiff was at the top of the ladder and the ladder
slipped. Plaintiff’s right foot was caught on one of the rungs of the ladder
and he fell on his right side. Plaintiff’s testimony did not indicate he was
working with a wobbly ladder. In other words, there is no reasonable
explanation to elucidate why the ladder slipped as Plaintiff climbed the rungs.
There are no witnesses available who can offer additional information this work
accident bore no witnesses. This work accident occurred in December, which can
be a colder month of the year, but there is no evidence to suggest the climate
was icy or raining. Thus, the rungs of the ladder were not slippery based upon
Plaintiff’s testimony.
This work accident
required emergency care. Plaintiff sought treatment at Norton Immediate Care
Center. Drug screening showed the presence of cocaine. Despite Plaintiff’s
multiple fractures, physicians only prescribed Tylenol and Ultram.
On May 13, 2016, Dr.
Jortani, a forensic toxicologist, issued a report after reviewing Plaintiff’s
deposition testimony, the December 22, 2014 toxicology report, IME reports of
Drs. Sheridan and Barefoot, and the first report of injury. Also, Dr. Jortani
reviewed several textbooks and the relevant literature on cocaine and its
effects. Dr. Jortani noted a urine sample collected had resulted in a positive
cocaine metabolite test with a screening cut-off of 300 ng/mL. Without input
from Plaintiff, it was impossible for Dr. Jortani to determine how recent
Plaintiff’s ingestion of cocaine occurred.
Dr. Jortani explained
the effects of cocaine include impairment in reaction time, cognition,
psychomotor speed, visuoperception, executive function, and manual dexterity. Dr. Jortani opined,
within reasonable scientific certainty that Plaintiff was more likely than not
an active user of cocaine. Dr. Jortani unequivocally opined Plaintiff’s
ingestion of cocaine placed him in a greater risk of falling. Dr. Sheridan
concurred that the presence of cocaine in Plaintiff’s urine sample could have
been a significant contributing factor. Dr. Barefoot does not address
Plaintiff’s urine sample, which was positive for cocaine.
This ALJ finds the
totality of the evidence indicates Plaintiff’s voluntary intoxication caused
the December 18, 2014 work accident. In the
absence of other factors to explain why the ladder slipped and the presence of
cocaine in Plaintiff’s urine sample collected in short order following the work
accident, this ALJ finds Plaintiff’s
voluntary ingestion of cocaine and resultant intoxication was a primary
factor/cause of the December 18, 2014 work accident. There is no doubt
Plaintiff used cocaine prior to the work accident, as evidenced by the urine
screening results. Dr. Jortani has explained the altering effects associated
with cocaine use, which includes impaired attention, concept formation,
reaction time, and cognition. Plaintiff’s testimony did not suggest the ladder
used on December 18, 2014 was wobbly or un-sturdy. There is no evidence that
the rungs of the ladder or any part of the ladder were slippery. Considering
the altering effects of cocaine as explained by Dr. Jortani, this ALJ finds the
work accident of December 18, 2014 was caused by Plaintiff’s voluntary
intoxication and impaired attention, concept formation, and reaction time.
Thus, based upon the opinions of Drs. Jortani and Sheridan, the positive urine
drug screen, and Plaintiff’s testimony, this ALJ finds Plaintiff’s voluntary
intoxication was a primary cause in the December 18, 2014 work accident. As
such, Plaintiff’s claim for benefits is dismissed.
Aguirre filed a petition for reconsideration arguing the
ALJ’s finding that his voluntary ingestion of cocaine proximately caused the
work accident is not supported by substantial evidence. Aguirre argued the screening merely
identified cocaine was present, but did not address proximate cause. Aguirre asserted the ALJ relied upon negative
facts, i.e., lack of proof the ladder was deficient. Aguirre noted people fall off functional
ladders with regularity who are not intoxicated, and that this does not prove
proximate cause. Aguirre finally pointed
to the Board’s holding that Drs. Jortani and Sheridan’s opinions do not meet the standard of proof for the
affirmative defense set forth in KRS 342.610(3). Aguirre stated there is not a scintilla of
evidence supporting a finding that cocaine ingestion proximately caused the
accident.
The ALJ denied Aguirre’s petition,
noting she reviewed the totality of the evidence and concluded his voluntary
ingestion of cocaine proximately caused the work accident.
On appeal, Aguirre argues the ALJ’s
additional findings in the opinion on remand do not constitute substantial
evidence supporting the finding his voluntary ingestion of cocaine proximately
caused the work accident. Aguirre notes
the ALJ made the following additional findings:
the lack of explanation as to why a non-deficient ladder under normal
weather conditions would slip and the lack of testimony the grade of the roof
he was working on made it difficult for him to secure the ladder.
Aguirre asserts R & T Acoustics
cannot present other factual evidence outside the medical evidence to suggest
his cocaine ingestion played any role in the work accident. Aguirre asserts non-deficient ladders slip
everyday under normal weather conditions and that ineffective securing of
ladders happens routinely. Aguirre notes
KRS 342.610(3) is an affirmative defense, and asserts R & T Acoustics is
unable to present evidence he somehow improperly secured the ladder due to his
cocaine ingestion.
Aguirre asserts the medical evidence
is the only proof relating to the intoxication defense, which this Board has
held is insufficient as a matter of law.
Therefore, Aguirre requests the Board to reverse the ALJ’s opinion on
remand.
As the claimant in a
workers’ compensation proceeding, Aguirre bore the burden of proving each of
the essential elements of his cause of action.
Snawder v. Stice, 576 S.W.3d 276 (Ky. App. 1979). However, the employer bears the burden of
proof for any affirmative defense raised, including voluntary
intoxication. Whittaker v. Hardin,
32 S.W.3d 497 (Ky. 2000). In order to
sustain that burden, the employer must go forward with substantial evidence
sufficient to convince reasonable people.
Since R & T Acoustics was successful in that burden, the question on
appeal is whether there was substantial evidence of record to support the ALJ’s
decision. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).
“Substantial evidence” is defined as evidence of relevant consequence having
the fitness to induce conviction in the minds of reasonable persons. Smyzer
v. B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971).
In rendering a decision,
KRS 342.285 grants an ALJ as fact-finder the sole discretion to determine the
quality, character, and substance of evidence. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky.
1993). An ALJ may draw reasonable inferences
from the evidence, reject any testimony, and believe or disbelieve various
parts of the evidence. Jackson v. General Refractories Co.,
581 S.W.2d 10 (Ky. 1979); Caudill
v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977).
Although a party may note evidence supporting a different outcome than reached
by an ALJ, such proof is not an adequate basis to reverse on appeal. McCloud v.
Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). Rather, it must be shown there was no evidence of
substantial probative value to support the decision. Special Fund v. Francis,
supra.
The function of the
Board in reviewing an ALJ’s decision is limited to a determination of whether
the findings made are so unreasonable under the evidence that they must be
reversed as a matter of law. Ira A. Watson Department Store v. Hamilton,
34 S.W.3d 48 (Ky. 2000). The Board, as
an appellate tribunal, may not usurp the ALJ's role as fact-finder by
superimposing its own appraisals as to weight and credibility or by noting other conclusions or reasonable inferences
that otherwise could have been drawn from the evidence. Whittaker v. Rowland, 998
S.W.2d 479 (Ky. 1999).
In Advance Aluminum Company v. Leslie,
869 S.W.2d 39, 40 (Ky. 1994) the Kentucky Supreme Court held KRS 342.610,
"encompasses situations including horseplay, intoxication, or other
employee conduct shown to have been an intentional, deliberate action with a
reckless disregard of the consequences either to himself or to another." KRS 342.610(3) provides, “Liability for
compensation shall not apply where injury . . . to the employee was proximately
caused primarily by voluntary intoxication as defined in KRS 501.010. . .
.” KRS
501.010(2) defines intoxication as “. . . a disturbance of
mental or physical capacity resulting from the introduction of substances into
the body.” R & T Acoustics must
prove that Aguirre was intoxicated, and that the intoxication was the primary
causal factor in the accident. Wilson v.
Wizor,
544 S.W.2d 231 (Ky. 1976).
In Campbell vs. City of
Booneville, Ky., 85 S.W.3d 603 (2002), the Claimant, a police officer, was
injured in a car accident and had a blood alcohol level was 0.14. The employer presented evidence from a
physician that a blood alcohol level of 0.14 would impair a driver's ability to
safely operate a motor vehicle. However,
the physician could not state that alcohol intoxication was the primary cause
of Campbell's accident. The ALJ
concluded the Claimant’s intoxication was the proximate cause of the accident
noting his blood alcohol level, the slippery road conditions, and the fact that
the accident occurred while he was attempting to negotiate a curve in the road
at high speed. The Court affirmed the
ALJ stating, “if a worker's voluntary intoxication was the primary cause of an
injury, it is immaterial whether other factors contributed to causing it.” Id.
at 606. The Court noted expert testimony
concerning the primary cause of the accident was not required. Id. at 606-607. The Claimant’s testimony concerning his
conduct, in conjunction with the physician's testimony concerning
the effect of a 0.14 blood alcohol level would have had on an individual's
ability to drive safely was sufficient to support
the ALJ’s finding. Id. at 607.
In Perdue Farms, Inc. v. Terry Stogner,
2003 WL 22160347, 2002-SC-0881 (September 18, 2003)(unpublished) the Claimant
was injured during the second part of a double shift when his glove caught into
a machine, and had a blood alcohol level of 0.15. A physician testified alcohol impairs
judgement but that he did not know the Claimant’s tolerance for alcohol,
indicating the degree of impairment varies among individuals. The ALJ concluded the Claimant’s injuries
were not proximately caused by his involuntary intoxication noting the
physician’s statement that the effect of alcohol upon an individual varies, the
testimony regarding the circumstances of the day of the accident, and testimony
from two co-workers who had observed the Claimant on the day of the
accident. The Court ultimately found the
decision was reasonable, noting the ALJ pointed to the Claimant’s lack of food
or sleep and extended work hours as factors likely to have contributed to the
cause of injury; to the testimony from two co-workers who observed the
Claimant’s behavior during all relevant times; to testimony regarding the
circumstances of the accident; and the medical evidence that the effect of
alcohol on a particular individual varies.
We determine the ALJ failed to identify
additional evidence in the record, as directed by this Board, to establish he
was intoxicated at the time of his accident and the intoxication was the
proximate cause "primarily" leading to his injury pursuant to KRS
342.610(3). The Board previously held
that as a matter of law, the opinions of Drs.
Jortani and Sheridan alone do not meet the standard of proof for the
affirmative defense set forth in KRS 342.610(3). The Board vacated the ALJ’s decision and
remanded the claim for a determination of whether the opinions of Drs. Jortani
and Sheridan, in concert with other evidence in the record, satisfy the standard
set forth in KRS 342.610(3). In concert
with the opinions of Drs. Jortani and Sheridan, the ALJ cited to the following
in finding Aguirre’s voluntary
intoxication of cocaine was a primary cause in the December 18, 2014 work
accident: the lack of explanation as to why a non-deficient
ladder, under normal weather conditions would slip; no indication in Aguirre’s
testimony that the grade of the roof he was working on made it difficult for
him to secure the ladder; no indication the ladder was unsteady or wobbly as he
climbed the rungs; and the lack of evidence suggesting the climate was icy or
raining on the day of the accident. The
ALJ found the absence of other factors present to explain why Aguirre slipped
as he climbed the rungs, in conjunction with Drs. Jortani and Sheridan’s
opinions, persuasive in concluding his voluntary ingestion of cocaine and
resultant intoxication was a primary cause of the December 18, 2014
accident. These observations by the ALJ
are mere suppositions which are not supported by the evidence.
As noted above, R &
T Acoustics bore the burden of proving Aguirre was intoxicated and that the intoxication was
the primary causal factor in the accident.
It is undisputed that R & T Acoustics proved cocaine was present in
Aguirre’s system at the time of the accident, as demonstrated by the urine drug
screen results. However, the ALJ was
unable to identify additional evidence in the record to establish the
ingestion of cocaine was the proximate cause "primarily" leading to
Aguirre's accident pursuant to KRS 342.610(3).
Unlike the evidence developed in Campbell vs. City of Booneville, supra, and Perdue
Farms, Inc. v. Terry Stogner, supra, no evidence was introduced establishing the condition of or
possible deficiencies with the ladder, the condition or grade of the roof on which the
ladder placed or the weather from the day of the accident. The ALJ’s determination that the lack of
evidence on these issues supports the conclusion Aguirre’s voluntary
ingestion of cocaine was a primary cause of the December 18, 2014 accident is
speculative at best and fails to rise to the level of proof necessary to
establish causation in the affirmative defense of voluntary intoxication. The burden was on R & T Acoustics to
affirmatively introduce evidence of these additional factors cited by the ALJ,
and it failed to do so.
On remand, the ALJ failed
to identify evidence as directed by the Board to satisfy the standard set forth in KRS 342.610(3). Therefore, the opinion on remand and order on
reconsideration must be reversed, and the claim remanded to the ALJ to resolve
on the merits the remaining contested issues as listed in the June 13, 2016 Benefit
Review Conference.
Accordingly,
the February 9, 2018 Opinion and Order on Remand,
and the April 24, 2018 Order rendered by Hon. Stephanie L. Kinney,
Administrative Law Judge, are hereby REVERSED
AND REMANDED for entry of an amended opinion in conformity with the views
expressed herein.
ALL CONCUR.
COUNSEL FOR PETITIONER:
HON
JEFFREY T SAMPSON
450
SOUTH THIRD ST, 4TH FLOOR
LOUISVILLE,
KY 40202
COUNSEL FOR RESPONDENT R & T
ACOUSTICS:
HON
JAMES G FOGLE
610
SOUTH FOURTH ST, STE 701
LOUISVILLE,
KY 40202
RESPONDENT:
NATIONAL
DRYWALL, LLC
2
MOCKINGBIRD LANE
NORTH
AUGUSTA, SC 29841
ADMINISTRATIVE LAW JUDGE:
HON
STEPHANIE L KINNEY
657
CHAMBERLIN AVE
FRANKFORT,
KY 40601
