Barron v. Labor Comm'n

2012 UT App 80

274 P.3d 1016

704 Utah Adv. Rep. 5

James BARRON, Petitioner,

v.LABOR COMMISSION, Hogan & Associates Construction, and New Hampshire Insurance Company, Respondents.

No. 20110313–CA.

Court of Appeals of Utah.

March 22, 2012.

W. Scott Lythgoe, Deven J. Coggins, and Addison D. Larreau, Ogden, for Petitioner.

Alan L. Hennebold, Salt Lake City, for Respondent Labor Commission.

Bret A. Gardner and Kristy L. Bertelsen, Salt Lake City, for Respondents Hogan & Associates Construction and New Hampshire Insurance Co.Before Judges VOROS, ROTH, and CHRISTIANSEN.

OPINION

VOROS, Associate Presiding Judge:

¶ 1 Petitioner James Barron challenges the decision of the Labor Commission denying him disability compensation. We set aside the Commission's decision and direct the Commission to reconsider Barron's petition.

BACKGROUND

¶ 2 Barron is a welder and connector of structural iron. He was injured when he fell from the second story of a building under construction. His workers' compensation claim for disability compensation was denied on the basis that he had drugs in his system at the time of the accident.

¶ 3 The accident occurred on February 25, 2009. When Barron arrived at work that morning, the welding foreman assigned him to cut a hole for a drain in the second-story floor, which was covered with temporary metal decking over structural steel beams. Barron retrieved the cutting torch from one end of the structure and began unrolling the hose as he walked to the location of the drain. He had no place to tie off his safety harness while he moved across the floor. As Barron was unrolling the hose, he began walking backward to make sure the hose did not kink. As he was doing so, he stepped off the edge of the decking and fell more than fourteen feet to the concrete floor, suffering injuries to his spine, arms, and liver, and a possible intracranial bleed.

¶ 4 A urine sample taken at the hospital the day of the accident tested positive for cocaine metabolites, with a level of 493 ng/ml. The cutoff concentration level for the initial screening test was 300 ng/ml, and the cutoff concentration for the confirmation test was 150 ng/ml. Barron admitted to having shared a quarter of a gram of cocaine with a friend two days before the accident.

¶ 5 Barron filed a workers' compensation claim with the Commission, seeking compensation for permanent partial disability, medical expenses, and recommended medical care. His employer, Hogan & Associates Construction, and its insurance carrier challenged disability compensation on the basis of Barron's drug use, conceding that the claim was otherwise compensable. The Administrative Law Judge (ALJ) awarded medical costs but denied disability compensation. She concluded that the presence of the cocaine metabolite in Barron's system at the time of the accident triggered a statutory presumption that drug use was the major contributing cause of his injury. See generally Utah Code Ann. § 34A–2–302(4)(a) (2011). The ALJ further concluded that Barron had failed to rebut this presumption, stating, “There is no showing that some outside force caused [Barron] to fall.”

¶ 6 The Commission affirmed the ALJ's decision. It rejected Barron's assertion regarding the quantity and timing of his cocaine use, based on a letter from a toxicologist stating that the level of cocaine in Barron's system “indicated use of a greater amount, more recent use, or more frequent use of cocaine than he admitted.” The Commission also rejected Barron's argument that the lack of safety measures was the major contributing cause of his injuries, reasoning that Barron “was familiar with the precarious and inherently dangerous circumstances of the construction site where the accident occurred” and that “[t]he evidence shows that it was Mr. Barron's own actions that caused his fall rather than some other force causing him to fall.”

¶ 7 Neither the ALJ's decision nor the Commission's decision discussed testimony offered by Barron indicating that he showed no signs of impairment at the time of the accident.

ISSUE AND STANDARD OF REVIEW

¶ 8 Barron challenges the Commission's conclusion that he did not present sufficient evidence to rebut the presumption that his drug use was the major contributing cause of his injuries. The Commission's determination of causation under Utah Code section 34A–2–302 is a question of fact. See Lopez v. Kaiser Steel Corp., 660 P.2d 250, 251 (Utah 1983). However, embedded in Barron's argument is a claim that the Commission made an error of law in interpreting the statutory presumption. “[A]bsent a grant of discretion, an agency's interpretation or application of statutory terms should be reviewed under the correction-of-error standard.” Esquivel v. Labor Comm'n, 2000 UT 66, ¶ 14, 7 P.3d 777; see also Utah Code Ann. § 63G–4–403(4)(d) (2011).

ANALYSIS

¶ 9 The Workers' Compensation Act prohibits disability compensation when “the major contributing cause of the employee's injury” is the employee's unauthorized use of alcohol or a controlled substance.¹ Utah Code Ann. § 34A–2–302(3)(b) (2011). The statute creates a rebuttable presumption that use of a non-prescribed controlled substance is the major contributing cause when any amount of the substance or its metabolite is found in the employee's system at the time of the injury:

[I]t is presumed that the major contributing cause of the employee's injury is the employee's conduct described in Subsection[ ](3)(b)(i) ... if at the time of the injury:

(i) the employee has in the employee's system:

(A) any amount of a controlled substance or its metabolites if the employee did not obtain the controlled substance under a valid prescription[.]

Id. § 34A–2–302(4)(a). To trigger the presumption, the presence of the controlled substance or its metabolite must be established by a chemical test that meets certain statutory requirements, which is not challenged here. See id. The presumption may be rebutted by evidence showing that (1) the chemical test was inaccurate; (2) the employee did not unlawfully use a controlled substance; (3) the test results do not exclude the possibility of passive inhalation of marijuana; (4) according to expert medical opinion, the level of the controlled substance in the employee's system does not support a finding that drug use was the major contributing cause of the employee's injury; or (5) the employee's drug use “was not the major contributing cause of the employee's injury.” Id. § 34A–2–302(4)(b).

¶ 10 Barron attempted to rebut the presumption under the fifth alternative. He contends that he presented two types of evidence showing that his drug use was not the major contributing cause of his injury. First, he argues that testimony showed that he was not impaired the morning of the accident. Second, he argues that unsafe working conditions at the job site were the major contributing cause of his injuries. Respondents counter that testimony of nonimpairment in this case should be given “little, if any, weight,” and suggest that for Barron to rebut the presumption under the fifth alternative, he would have to provide evidence that “an outside force” or occurrence was the major contributing cause, and he has not done so.

¶ 11 The ALJ and the Commission both seem to have read the statute to require Barron to rebut the presumption by identifying a factor other than his drug use as the major cause of his injury. The ALJ's decision concludes that Barron failed to show that his drug use was not the major contributing cause of his injury, because he made “no showing that some outside force caused” his fall. Although three witnesses testified that Barron was not impaired on the morning of the accident, the ALJ did not weigh or otherwise discuss this evidence. Her analysis thus seems to assume that, for Barron to show that drug use was not the major contributing cause of his injury, he was required to identify some other “outside force” that was. Similarly, the Commission's decision states, “The evidence shows that it was Mr. Barron's own actions that caused his fall rather than some other force causing him to fall through the second-story decking.” Given the Commission's lack of findings regarding evidence of nonimpairment, this statement also seems to assume that for Barron to show that drug use was not the major contributing cause of his injury, he was required to identify “some other force” that caused the injury.

¶ 12 That is not how we read the statute. The statute provides that the presumption may be rebutted by evidence showing that the employee's drug or alcohol use “was not the major contributing cause of the employee's injury.” Utah Code Ann. § 34A–2–302(4)(b)(v). While identifying “some other force” as the major contributing cause of the injury would surely be one way to show that the employee's drug or alcohol use was not the major contributing cause of the injury, nothing in the statutory language limits the employee to this approach. Nothing in the statute, for example, would prevent an employee from rebutting the presumption with evidence demonstrating that, whatever the major contributing cause of his injury might have been, it could not have been his drug or alcohol use, because he was not impaired at the time of the accident. This approach is consistent with that taken by a number of states with similar presumptions in their workers' compensation statutes. See, e.g., Ward v. Hickory Springs Mfg. Co., 97 Ark.App. 311, 248 S.W.3d 482, 486–87 (2007) (relying on testimony of coworker, supervisor, and manager); Forrester v. New Orleans Iron Works, 869 So.2d 216, 218–22 (La.App. 5 Cir.2004) (relying on testimony of employee and coworker); Construction Indus. Workers' Comp. Grp. ex rel. Mojave Elec. v. Chalue, 119 Nev. 348, 74 P.3d 595, 598–99 (2003) (relying on testimony of employee and foreman and report of medical personnel who initially attended to employee after accident). We thus conclude that an employee...