ADJ13762384 — California WCAB decision

What the panel ordered

Petition for Reconsideration is denied.

Defendant Great American Insurance filed a timely, verified Petition for Reconsideration of the WCJ's Findings of Fact & Order dated 6/6/2022, contesting the finding that applicant's injury was compensable and not barred by the intoxication defense.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

AOE/COEApplicant prevailedface · head · right eye

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.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

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

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

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.

work activityfavours Applicant prevailed

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.

ADJ13762384 · August 23, 2022

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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What the panel did with the medical opinions

The rules the panel named

What proof carried it

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