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Worker entitled to compensation despite positive cocaine test

ladder fall

A Kentucky appellate court affirmed the state’s Workers Compensation Board’s decision to award workers compensation benefits to a man who was injured when he fell off a ladder, even though he tested positive for cocaine.

In R&T Acoustics v. Aguirre, a three-judge panel of the Kentucky Court of Appeals unanimously held Friday that the employer failed to present enough evidence that the workers’ injury was proximately caused by his intoxication.

On Dec. 18, 2014, Bernabe Aguirre was working for a contractor on the construction of an H.H. Gregg store when he fell off a ladder and sustained fractures to his ankle and foot. During his treatment, Mr. Aguirre submitted a urine sample for a drug test that showed a positive cocaine metabolite test. His employer denied his request for benefits, arguing that his injury was “proximately caused primarily by voluntary intoxication” and that therefore, under Kentucky law, it was not liable to compensate for his injuries. Mr. Aguirre said the extension ladder “slipped” and caused him to fall; he did not answer questions about any drug-related impairment.

An administrative law judge dismissed Mr. Aguirre’s claim, relying on a physician’s opinion that the presence of cocaine in Mr. Aguirre’s body “could undermine his ability to perform his work duties safely” and that the “presence of cocaine in the quantities documented could have been a significant contributing factor in his injury.”

Another doctor, however, testified that it could not be determined whether Mr. Aguirre had recently ingested cocaine or had done so the night before. Mr. Aguirre appealed to the workers comp board, which vacated the decision, holding that the testimony of the physicians was insufficient to support the ALJ’s finding of voluntary intoxication. The company petitioned for review, arguing that the board exceeded its authority by substituting its judgment for that of the ALJ.

The Kentucky Court of Appeals affirmed the decision, holding that the burden was on the employer to prove the affirmative defense of intoxication. The appellate court found that the ALJ failed to identify evidence in the record to establish that intoxication was the proximate cause “primarily” leading to Mr. Aguirre’s injury. Although the employer argued that because Mr. Aguirre offered no other explanation for his injury to rebut the evidence of intoxication, and that therefore the ALJ was free to infer the injury was caused by the intoxication, the appellate court disagreed, holding that the board properly concluded that the standard requires evidence that intoxication was the primary cause of an injury.

The attorneys in the decision did not immediately return calls for comment.




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