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R & T Acoustics v. Aguirre

Court of Appeals of Kentucky

March 29, 2019



          BRIEF FOR APPELLANT: James G. Fogle Louisville, Kentucky

          BRIEF FOR APPELLEE: Jeffrey T. Sampson Louisville, Kentucky



          DIXON, JUDGE.

         Appellant, 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.

         On 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)[1] 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[.]"

         Aguirre 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.

         RTA 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.

         Additionally, 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.

         The ALJ 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. ...

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