After BernabeAguirre was injured when he fell from a ladder while working at aconstruction site, he received medical treatment at an urgent carecenter for fractures to his ankle and foot. During histreatment, Aguirre submitted a urine sample for a drug screen,which resulted in a positive cocaine metabolitetest. (Photo: iStock)

A Kentucky court has affirmed a decision by the Workers'Compensation Board that a positive cocaine test of an injuredemployee did not bar his workers' compensation claim, reasoningthat the employer failed to demonstrate that the employee's injuryhad been proximately caused primarily by his voluntaryintoxication.

Fell from ladder while working construction

After Bernabe Aguirre was injured when he fell from a ladderwhile working at a construction site, he received medical treatmentat an urgent care center for fractures to his ankle and foot.

During his treatment at the center, Aguirre submitted a urinesample for a drug screen, which resulted in a positive cocainemetabolite test. The lab report of the urinalysis indicated apositive result for cocaine, with a screening cutoff of300ng/Ml and a confirmation cutoff of 150ng/Ml.

Aguirre filed a claim for workers' compensation benefits, and R& T Acoustics (RTA) ultimately was determined to be theup-the-ladder employer responsible for his claim. RTA raised theaffirmative defense of voluntary intoxication pursuant to theversion of KRS 342.610(3) then in effect, which stated:

Liability for compensationshall not apply where injury . . . to the employee was proximatelycaused primarily by voluntary intoxication as defined in KRS501.010[.]

Doctors' reports

In support of its affirmative defense, RTA submitted a report ofDr. Richard Sheridan, an orthopedic surgeon, who opined on theissue of intoxication:

From a medical standpoint, thepresence of cocaine in Mr. Aguirre's body could undermine hisability to perform his work duties safely. The presence of cocainein the quantities documented could have been a significantcontributing factor in his injury. It could have caused his injuryto 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 conducteda review of Aguirre's medical records, deposition testimony, andtextbooks relating to the effects of cocaine. On the issue ofintoxication and Mr. Aguirre's work accident, Dr. Jortaniopined:

[T]here is no information on the lasttime he ingested cocaine nor is it known whether he is a frequentabuser of cocaine or he uses it sporadically and occasionally.Since we do not have a blood test for cocaine and itsmetabolite testing, it is not feasible to establishwhether the positive test was due to a recent ingestion or use ofcocaine the day before! . .

Keeping in mind the result of thetesting of his urine on the sample collected at the [urgent carecenter], it is my opinion with reasonable scientific probabilitythat he was more likely than not an active user of cocaine. What isnot clear here is the time of last ingestion as well as thefrequency of abuse. If we had these two pieces of information, itwould be feasible to establish whether the voluntary ingestion ofcocaine as demonstrated by the urine positive test result was theproximate cause of the injury as the result of his fall. . . . Nothaving the information, we can only conclude that by ingestingcocaine at some point during the period of 1-24 hours prior totesting, Mr. Aguirre put himself at greater risk of falling whilebeing on the top of the ladder and the resulting fall andinjuries.

The ALJ dismissed Aguirre's claim, concluding thatvoluntary intoxication had caused his injury.

Workers' Compensation Board finding

The Workers' Compensation Board reversed, finding that RTA wasnot entitled to the affirmative defense of voluntaryintoxication because it failed to produce substantial evidence thatAguirre's injury had been proximately caused primarily by voluntaryintoxication. The board remanded the matter to the ALJ forresolution of the merits of the remaining contested issues.

RTA went to court.

Court held employer had duty to prove voluntaryintoxication

The court affirmed the board's decision.

The court explained that, as the employer, RTA had the burden toprove the affirmative defense of voluntary intoxication, defined asintoxication caused by substances that the employee knowinglyintroduced into his body, the tendency of which was tocause intoxication about which the employee knew or ought to haveknown.

The court noted that, to sustain its burden of proving thatAguirre's injury had been proximately caused primarily by voluntaryintoxication, RTA submitted the urgent care records showing thepositive drug screen result and the expert opinions of Drs. Jortaniand Sheridan. The court pointed out, however, that:

• Dr. Jortani was unable to state that ingesting cocaine was theproximate cause of Aguirre's injury; instead, he concluded that “byingesting cocaine at some point during the period of 1-24 hoursprior to testing, Mr. Aguirre put himself at greater risk offalling”; and
• Dr. Sheridan opined that the cocaine ingested by Aguirre “couldhave been a significant contributing factor” to the injury.

The court ruled that, after “carefully review[ing] the record,”it did not believe that the board had “overlooked or misconstruedcontrolling statutes or precedent, or committed an error inassessing the evidence so flagrant as to cause grossinjustice.”

The court concluded, therefore, that the board's order reversingthe ALJ was supported by substantial evidence in the record.

The case is R & T Acoustics v. Aguirre, No.2018-CA-001277-WC (Ky. Ct. App. March 29, 2019).

Steven A. Meyerowitz, Esq., is director ofthe Insurance Coverage Law Center (formerlyFC&S Legal). He can be reached at [email protected].

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