An employee says while he was working on a roof, he stood up to brush off some ants when he fell through the roof, suffering serious injuries. Blood and urine tests came back positive for alcohol and illegal drugs. Why did he get workers’ comp?
Norman Gideon was replacing a roof on an old house for Yost Properties in Kansas.
When he noticed some ants crawling on him, Gideon stood up to brush them off. The roof gave way where he was standing, and Gideon fell 8 to 10 feet through rafters in the ceiling, landing on a concrete floor. He fractured a vertebra which required surgery.
Gideon tried physical therapy and pain management after the surgery, but he still had pain in his lower back and left hip. He never returned to work and applied for disability benefits under workers’ comp.
Yost wanted to deny Gideon workers’ comp benefits based on positive blood and urine tests for alcohol, cocaine and marijuana at the hospital following his fall.
Gideon admitted having two or three beers that day before reporting to work but denies ever using cocaine or pot.
His blood-alcohol level was .095 an hour after his fall. That’s higher than the legal limit to drive a vehicle in Kansas (.08).
Yost hired a doctor who was a certified occupational and preventive medical specialist to review Gideon’s medical records.
In the doctor’s opinion, Gideon was intoxicated at the time of his injury, and his intoxication contributed to his fall.
The doctor said the degree of Gideon’s intoxication showed that his balance, while working on a roof, was adversely affected. When the ants crawled on him, Gideon lost his balance, causing him to fall, according to the doctor’s report.
Going a step further, the doctor also seemed to suggest that Gideon may have been hallucinating at the time of his fall, and that he just imagined ants were crawling on him.
However, the drug tests performed only showed the presence of cocaine and marijuana. There was no report on the level of either substance in Gideon’s system.
An administrative law judge (ALJ) of the Kansas Division of Workers Compensation reviewed the case, and there was insufficient evidence to prove Gideon’s intoxication contributed to his injury. Therefore the employee should receive workers’ comp benefits, according to the ALJ.
The ALJ found the doctor’s testimony that Gideon was hallucinating at the time of his fall wasn’t credible. There was no evidence in the record Gideon did anything more than simply stand up while brushing off ants and fell through a deteriorated portion of the roof.
Gideon was a credible witness, according to the ALJ.
Yost took the case to the Kansas Workers Compensation Appeals Board.
The Board noted there was little doubt Gideon was, to some degree, impaired due to the substances in his system at the time of his fall.
But under state law, it’s the employer’s burden to prove both the impairment and how it affected the incident that caused an injury.
The Board said the doctor’s contention that someone else who wasn’t impaired would have reacted differently than Gideon did when he discovered the ants crawling on him wasn’t a persuasive argument. The doctor’s assumption that no ants were actually present and Gideon was hallucinating was also unsupported by evidence.
The doctor’s testimony lacked credibility, according to the Board. Also, the record didn’t support a finding that Gideon’s intoxication affected his awareness about the state of the roof. Therefore, the Board agreed that Yost failed to carry its burden to show Gideon’s intoxication contributed to his fall and injury. The award of benefits was upheld.
Yost took its case to the Kansas Court of Appeals. The court recently upheld the Board’s ruling without issuing a written opinion.
This case demonstrates that, in many states, it’s not enough to show a worker was intoxicated at the time of injury to deny workers’ comp benefits. Depending on the wording of a particular state’s workers’ comp law, the company has to show the intoxication at least contributed to the injury to deny benefits.
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(Gideon v. Yost Properties, Appeals Board for the Kansas Div. of Workers Compensation, No. 1,043,042, 6/13)