ADJ13762384 · August 23, 2022

Defendant failed to meet its burden of proof that applicant's injury was caused by intoxication; no evidence that applicant was impaired at work or that intoxication caused the injury.

From the decision · page 5No. It is clear from the evidence presented that applicant was performing his usual and customary work duties on the employer's premises at the time he sustained injury on 9/16/20.

No evidence that applicant was impaired or intoxicated at work or that intoxication caused the injury; video and testimony supported normal behavior.

Favours Applicant prevailed

Failure to prove causation between intoxication and injury meant the defense did not bar compensability.

From the decision · page 5It is also clear from blood and urine analysis from samples obtained a few hours post- injury, that applicant's predicted drug levels at the time of injury were compatible with some level of impairment. PQME, Dr. Gillis, noted that being under the influence of [drugs] can cause symptoms associated with euphoria, impaired judgement, aggressive behavior, restlessness, and hyperactivity. There was no evidence presented at trial, however, to support that applicant demonstrated any of those possible symptoms at any time on the day he was injured. A review of the video tape of the two minutes surrounding applicant's injury does not identify any physical mannerisms or movements supportive of euphoria, aggression, restlessness or hyperactivity. There was no testimony from anyone at work that applicant demonstrated any of those symptoms on the day of his injury, or for that matter, at any previous time during his employment (despite admitted recurrent drug use while off work). His immediate supervisor testified that he never saw applicant visibly intoxicated or impaired, but that if he had, he would have sent applicant to the main office, as he had with two other employees in the past.

Dr. Gillis' opinion was based on an unsupported version of events and was speculative.

Favours Applicant prevailed

Medical opinion not based on facts is not substantial evidence and cannot support the defense.

From the decision · page 7As Dr. Gillis' opinion relating to whether applicant's intoxication/impairment caused his work injury is based on a clearly unsupported version of how the injury occurred, and due to the fact that based on the facts presented in this case any conclusion that applicant's intoxication/impairment caused the injury to occur is speculative, the undersigned found that defendant had failed to meet its burden of proof that applicant's injury was barred due to intoxication pursuant to L.C. § 3600(a)(10)(4). Based on that finding, it was further found that applicant sustained injury on 9/16/20, while employed by Green Farms, Inc., as a maintenance worker, occupational group number deferred, at Los Angeles, California, to his face, head, and right eye, and that the record required further development relating to compensability associated with applicant's claim of injury to his neck, neuro, in the form of traumatic brain injury (TBI), and psyche/stress. The undersigned does not believe that he committed err in making those findings.

Dr. Gillis opined that applicant's intoxication/impairment caused his work injury, but this was based on an unsupported version of how the injury occurred and was found speculative and not substantial evidence.

Opinion was not based on the facts established at trial and was speculative regarding causation.

From the decision · page 7As Dr. Gillis' opinion relating to whether applicant's intoxication/impairment caused his work injury is based on a clearly unsupported version of how the injury occurred, and due to the fact that based on the facts presented in this case any conclusion that applicant's intoxication/impairment caused the injury to occur is speculative, the undersigned found that defendant had failed to meet its burden of proof that applicant's injury was barred due to intoxication pursuant to L.C. § 3600(a)(10)(4). Based on that finding, it was further found that applicant sustained injury on 9/16/20, while employed by Green Farms, Inc., as a maintenance worker, occupational group number deferred, at Los Angeles, California, to his face, head, and right eye, and that the record required further development relating to compensability associated with applicant's claim of injury to his neck, neuro, in the form of traumatic brain injury (TBI), and psyche/stress. The undersigned does not believe that he committed err in making those findings.

Labor Code §3600(a)(4); Labor Code §3202.5

Defendant has the burden of proof, pursuant to L.C. §3202.5, to prove by a preponderance of the evidence that the intoxication affirmative defense applies. The defense requires proof that (1) applicant ingested alcohol or unlawfully used a controlled substance, (2) use of that substance caused intoxication, and (3) the intoxication caused applicant's injury.

Applied to determine whether defendant met its burden to bar compensability based on intoxication.

From the decision · page 5An employer injury investigation notes that applicant was performing tasks he was assigned to do at the time of his injury (Applicant Exhibit 5). Defendants contend that applicant's otherwise compensable injury, is barred by the intoxication defense pursuant to L.C. § 3600(a)(10)(4). Defendant has the burden of proof, pursuant to L.C. § 3202.5 in proving by a preponderance of the evidence that the affirmative defense is applicable herein. The intoxication defense requires defendant to prove three things: (1) applicant ingested alcohol or unlawfully used a controlled substance, (2) use of that substance cause intoxication, and (3) the intoxication caused applicant's injury.

Applicant's testimony was found credible and without impeachment regarding his work activities and lack of impairment.

From the decision · page 6applicant's injury. Applicant testified credibly and without impeachment that he had used forklifts to lift other heavy things regularly during his employment. He used them to lift other forklifts to replace tires. Defendant contends in its petition that applicant's intoxication may have caused him to perform the scissor lift repair in an unsafe manner. However, specific to the industrial accident herein, there was no testimony from anyone that applicant used the forklift in a different manner than he had ever done in the past to lift something heavy, in order to establish that his drug use caused impaired judgment relating to how he used the forklift in this case. There was no testimony that he previously always secured the forklift forks in some fashion to the heavy object he was lifting, or that he previously always used both forks to lift a heavy object rather than a single fork, or that he always previously immobilized the object to be lifted so it would not move during the lifting process. There was no evidence presented that applicant performed the scissor lift lifting on the date of his injury in any different manner than he always lifted heavy things in the past when he wasn't impaired.

Workplace video showed applicant's actions prior to injury were normal and did not support impairment or intoxication.

From the decision · page 5It is also clear from blood and urine analysis from samples obtained a few hours post- injury, that applicant's predicted drug levels at the time of injury were compatible with some level of impairment. PQME, Dr. Gillis, noted that being under the influence of [drugs] can cause symptoms associated with euphoria, impaired judgement, aggressive behavior, restlessness, and hyperactivity. There was no evidence presented at trial, however, to support that applicant demonstrated any of those possible symptoms at any time on the day he was injured. A review of the video tape of the two minutes surrounding applicant's injury does not identify any physical mannerisms or movements supportive of euphoria, aggression, restlessness or hyperactivity. There was no testimony from anyone at work that applicant demonstrated any of those symptoms on the day of his injury, or for that matter, at any previous time during his employment (despite admitted recurrent drug use while off work). His immediate supervisor testified that he never saw applicant visibly intoxicated or impaired, but that if he had, he would have sent applicant to the main office, as he had with two other employees in the past.