CAUSATION - INTOXICATION; STATUTES CONSTRUED - MINN. STAT. § 176.021, SUBD. 1. An employer is not liable for compensation benefits if (1) the employee was intoxicated at the time of the injury, and (2) the intoxication was the proximate cause of the injury. Substantial evidence, including well-founded expert opinion, supports the compensation judge’s finding the employee was not intoxicated at the time of his motor vehicle accident and the employee did not experience cocaine washout syndrome.
EVIDENCE - EXPERT OPINION. The employee’s forensic toxicologist had the training and experience to qualify him as an expert on the effects of cocaine on the human body. The forensic toxicologist relied on facts consistent with those found by the compensation judge in arriving at an opinion as to whether the employee was intoxicated. The compensation judge’s reliance on that expert’s opinion as to whether the employee was intoxicated at the time of the work injury was not an abuse of discretion.
ARISING OUT OF & IN THE COURSE OF - PROHIBITED ACT. The employee’s violation of the employer’s drug policy did not constitute misconduct sufficient to disqualify the employee from benefits where there was no demonstration of a connection between failing a drug screen and the employee’s motor vehicle accident as the compensation judge had reasonably concluded that employee’s drug use did not result in intoxication that was the proximate cause of the accident.
JOB SEARCH; REHABILITATION - COOPERATION; TEMPORARY TOTAL DISABILITY. Where the employee’s QRC directed placement services prior to a search for employment through the period of disability and the employee cooperated with the rehabilitation assistance, the compensation judge’s determination regarding the adequacy of the job search and the award of temporary total disability benefits was supported by substantial evidence and not clearly erroneous.
Compensation Judge: Nicholas W. Chang
Attorneys: Eric B. Nelson, Fay & Associates, LLC, Minneapolis, Minnesota, for the Respondent. Susan E. Larson and Christine L. Tuft, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, Minnesota, for the Appellants.
Affirmed.
DAVID A. STOFFERAHN, Judge
The employer and insurer have appealed from the compensation judge’s determination that the employee sustained a compensable injury on February 2, 2021, and from the award of benefits. We affirm.
As of February 2, 2021, Juan Guzman Morales, the employee in this matter, had been employed by Installed Building Products, Inc., the employer in this matter, for 15 years. He installed fiberglass insulation at various job sites for his employer. Generally, he would drive to each job in a truck owned by the employer so he could transport the material that would be needed on the job. At the end of each workday, he was required to clean up the job site and bring the truck back to the employer’s premises. The fiberglass insulation used on the job was very dusty and the dust would be on the employee’s hair and clothes at the end of the day.
On February 2, 2021, the employee and a coworker were using a company truck to return to the employer’s shop. Mr. Guzman Morales was driving. On the way, the employee was distracted by fiberglass dust in his eyes, and he lost control of the truck. The truck then crashed into an electric pole. The employee was trapped in the truck by the collision and was extricated from the wreckage by emergency responders. He was then airlifted to a hospital for emergency medical care.
At the hospital, the employee was diagnosed with a fractured left femur, a soft tissue injury to the left knee, low back pain and a closed head injury. He was given medication for pain relief, including immediate release oxycodone. A rapid drug test taken some time after admission tested positive for the presence of cocaine metabolites. The employee had surgery for the fractured femur and additional treatment for his left knee.
The employer and its insurer denied responsibility for the employee’s injuries citing to results of drug testing and taking the position that the collision and resulting injuries were due to intoxication on the part of the employee.
After recovery from surgery, the employee began working with QRC Chris Horton of the Department of Labor and Industry/Vocational Rehabilitation Unit (DLI/VRU). The initial plan was for the employee to return to work with the date-of-injury employer. When the employee was released to light-duty work, QRC Horton contacted the employer to determine if light-duty work was available. He was advised that the employee had been terminated as of May 1, 2021. QRC Horton modified the plan to prepare the employee to begin a job search, which continued until the employee was taken off work in anticipation of ligament repair surgery for his left knee. Placement services were set to resume following the release to work from that surgery. QRC Horton assessed the employee as having been cooperative with the rehabilitation plan.
At the request of the employer and insurer, the employee was seen by Michael J. D’Amato, M.D., for an orthopedic evaluation. It was his opinion that the femur fracture was healing and that the soft tissue problems in the left knee were due to a pre-existing condition, most likely the employee’s obesity.
Andrew R. Topliff, M.D., reviewed the employee’s medical records at the request of the employer and insurer. In his report of February 11, 2022, Dr. Topliff opined that the employee’s motor vehicle accident was likely due, at least in part, to the employee’s use of cocaine, which resulted in what Dr Topliff referred to as “cocaine washout,” leading to fatigue and likely causing the accident.
The employee’s medical records, the deposition of the employee, and the IME reports of Drs. D’Amato and Topliff were reviewed by a forensic toxicologist, Jonathon Van Berkom, D.V.M., M.S., R.Ph. In his report of March 17, 2022, Dr. Van Berkom stated that the presence of cocaine metabolites and the absence of cocaine in the employee’s blood tested at the hospital indicated only that there had been cocaine use some days prior, not intoxication at the time of the motor vehicle accident.
Dr. Topliff issued a supplemental report on May 9, 2022, in which he restated his opinion that the employee had used cocaine more recently than reported and that the truck accident was more likely caused by cocaine washout. Dr. Van Berkom wrote a supplemental report dated May 16, 2022, in which he disagreed with the diagnosis of cocaine washout and that such a diagnosis was based on “speculation.”
The employee filed a claim for workers’ compensation benefits that was heard by a compensation judge on March 22, and May 18, 2022. The employee and a coworker testified regarding the employee’s demeanor over the two workdays leading up to the motor vehicle accident. Regarding cocaine use, the employee testified that he had been given cocaine at a club three days prior to the motor vehicle accident, that was his only recent use of cocaine, and that he was not experiencing any effects of cocaine use at the time of the accident. His coworker described the employee’s behavior and demeanor as normal on the two workdays leading up to the February 2, 2021, work injury. QRC Horton testified regarding the rehabilitation services provided to the employee by DLI/VRU.
The compensation judge issued his decision on August 10, 2022. He found the testimony of the employee and his coworker to be credible and determined the reports and opinions of Dr. Van Berkom were more persuasive than those of Dr. Topliff. The compensation judge concluded the employer and insurer had not met their burden in proving that the employee’s injuries were the result of intoxication. The compensation judge awarded temporary total disability (TTD) benefits and ordered payment of the intervention claims of medical providers. The employer and insurer have appealed the decision of the compensation judge to this court.
On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Minn. Stat. § 176.421, subd. 1(3). Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.” Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).
There is no dispute that the employee sustained significant injuries in the motor vehicle accident of February 2, 2021, and that at the time of the accident he was in the course and scope of his employment. The employer and insurer contend that the injury is not compensable as it arose from intoxication of the employee.
Minn. Stat. § 176.021, subd. 1, precludes compensation to an injured employee if “intoxication is the proximate cause of the injury.” The burden of proof in establishing intoxication rests with the employer.
On this issue, the employer relied on the opinion of Dr. Topliff, who reviewed hospital medical records for the basis of his opinion. Those records identified the presence of cocaine metabolites in the blood test done at the hospital. While the presence of metabolites may indicate the use of cocaine two or three days before the accident and while the employee’s use of cocaine would not have been legal, the question here is not legality but whether the use of cocaine caused the employee’s injury.[1]
The compensation judge adopted the opinion of Dr. Van Berkom, who concluded that there was no evidence of intoxication due to the employee’s prior cocaine use at the time of the February 2, 2021, motor vehicle accident.
The employer and insurer challenge the qualifications of Dr. Van Berkom to provide an opinion on this issue. The same question was raised at the hearing. As the compensation judge noted on this question, while Dr. Van Berkom is a licensed veterinarian, he has a master’s degree in forensic toxicology and has educational experience in this field as well. We conclude, as did the compensation judge, that there is adequate foundation for the compensation judge to rely on Dr. Van Berkom’s opinion. Adopting Dr. Van Berkom’s opinion was within the discretion of the compensation judge.
Substantial evidence, including credible testimony of the employee and a coworker and the well-founded opinion of a forensic toxicologist, supports the determination of the compensation judge that the employee’s drug use did not result in intoxication that was a proximate cause of the February 2, 2021, motor vehicle accident.
The employer and insurer also maintain that the employee’s use of cocaine, a violation of the employer’s drug policy, is employee misconduct which disqualifies the employee from receiving TTD benefits and that the compensation judge erred as a matter of law in awarding TTD benefits. Use of illegal drugs is not a per se disqualification from receipt of workers’ compensation benefits.[2] For a misconduct defense, the employer and insurer must demonstrate “a direct relationship between the prohibited conduct and the employee’s injury.”[3] In this matter, the required nexus between the prohibited conduct, failing a drug test, and the employee’s motor vehicle accident is lacking.
The employer and insurer also contend that the employee’s lack of a job search when released for light-duty work disqualifies him from eligibility for TTD benefits. The compensation judge, however, concluded that the employee cooperated with QRC Horton’s rehabilitation plan, which directed the employee to complete placement preparation prior to beginning a job search. This court has long held that cooperation with the rehabilitation plan is the standard for eligibility, not the job search alone.[4] Substantial evidence, including the testimony of the QRC providing rehabilitation services, supports the award of TTD benefits in this matter.
For the foregoing reasons, the decision of the compensation judge is affirmed.
[1]Ball v. Pear One, Inc., 67 W.C.D. 31, 44 (W.C.C.A. 2006), summarily aff’d (Minn. Jan. 24, 2007).
[2] See Waldoch v. Hischer, 62 W.C.D. 522 (W.C.C.A. 2002), summarily aff’d (Minn. Aug. 8, 2002); Veatch v. City of Duluth, slip op. (W.C.C.A. Nov. 10, 2003).
[3] Ball, 67 W.C.D. at 45 (quoting Yacouf v. Am. Nat’l Ins., 59 W.C.D. 104, 109 (W.C.C.A. 1999)).
[4] See, e.g., Boeder v. State, Dep’t of Nat. Res., 63 W.C.D. 634 (W.C.C.A. 2003), summarily aff’d (Minn. Nov. 26, 2003); Schreiner v. Alexander Constr. Co., 48 W.C.D. 469 (W.C.C.A. 1993), summarily aff’d (Minn. May 27, 1993); Bauer v. Winco/Energex, 42 W.C.D. 762 (W.C.C.A. 1989); Taylor v. Geo. A. Hormel & Co., 42 W.C.D. 633 (W.C.C.A. 1989).