PETITION FOR REVIEW OF A DECISION OF THE WORKERS'
COMPENSATION BOARD ACTION NO. WC-15-00236
FOR APPELLANT: James G. Fogle Louisville, Kentucky
FOR APPELLEE: Jeffrey T. Sampson Louisville, Kentucky
BEFORE: DIXON, GOODWINE, AND MAZE, JUDGES.
R & T Acoustics ("RTA"), petitions for review
of an opinion of the Workers' Compensation Board
reversing and remanding the Administrative Law Judge's
order dismissing Bernabe Aguirre's claim for benefits.
Finding no error, we affirm.
December 18, 2014, Aguirre was injured after falling from a
ladder while working for National Drywall, LLC, on the
construction of an H.H. Gregg store. Aguirre received medical
treatment at an urgent care center for fractures to his ankle
and foot. During his treatment at urgent care, Aguirre
submitted a urine sample for a drug screen, which resulted in
a positive cocaine metabolite test. Aguirre filed a claim for
workers' compensation benefits, and RTA was ultimately
determined to be the up-the-ladder employer of National
Drywall. RTA raised the affirmative defense of voluntary
intoxication pursuant to the version of KRS
342.610(3) then in effect, which stated:
"Liability for compensation shall not apply where injury
. . . to the employee was proximately caused primarily by
voluntary intoxication as defined in KRS 501.010[.]"
testified, using an interpreter, by deposition and at the
final hearing before the ALJ. Regarding his injury, Aguirre
explained he was on the roof of the building to repair the
store's sign, and he used an extension ladder to climb
approximately fifteen feet from the roof to the sign.
According to Aguirre, as he started working on the sign, the
ladder "slipped," causing him to fall. As he fell,
Aguirre's foot caught one of the rungs of the ladder, and
he landed on the roof. Aguirre asserted none of his coworkers
witnessed the accident, and he refused to answer questions
regarding his use of cocaine. Aguirre also submitted the IME
report of Dr. Jules Barefoot. Dr. Barefoot diagnosed Aguirre
with multiple fractures of the ankle and foot due to the work
accident and assessed a 7% impairment rating.
filed the medical records from Norton Healthcare detailing
Aguirre's urgent care visit. He was prescribed Ultram for
pain and fitted with an air cast and crutches. The lab report
of the urinalysis indicated a positive result for cocaine,
with a screening cutoff of 300ng/Ml and a confirmation cutoff
of 150ng/Ml. RTA also submitted the IME report of Dr. Richard
Sheridan, an orthopedic surgeon, who assessed a 7% whole
person impairment for Aguirre's ankle and foot injuries
resulting from the work accident. On the issue of
intoxication, Dr. Sheridan opined:
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.
RTA submitted the report of Dr. Saeed A. Jortani, a clinical
chemist and forensic toxicologist. Dr. Jortani conducted a
review of Aguirre's medical records, deposition
testimony, and textbooks relating to the effects of cocaine.
On the issue of intoxication and Aguirre's work accident,
Dr. Jortani opined:
. . . [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! . . .
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.
rendered an opinion on August 22, 2016, dismissing the claim.
The ALJ relied on the positive drug screen and the opinions
of Drs. Sheridan and Jortani to conclude that the work injury
was caused by Aguirre's voluntary cocaine intoxication.
Neither party filed a petition for reconsideration, and
Aguirre appealed to the Board. The Board issued an opinion
vacating and remanding the claim based on its determination
that the opinions of Drs. ...