By Francesca Larsen
In Lenny Szarek, Inc. v. The Workers’ Compensation Commission, 396 Ill.App.3d 597 (2009), Petitioner Daniel Rub was employed by Respondent as a journeyman carpenter. On the day of the accident, Petitioner was framing the exterior walls on the second floor of a new house. Since the house was still under construction, there was a nine foot by nine foot opening in the center of the building. The opening was marked with paint but did not have a guard rail around it. While working, Petitioner fell through the opening in the center of the house and landed in the basement. Immediately following the incident, Petitioner was transported to the hospital. His only recollection of the incident was that he thought he was “going to die.” Petitioner was rendered a paraplegic as a result of the accident.
While in the hospital, Petitioner tested positive for both marijuana and cocaine. Petitioner admitted a history of substance abuse to the hospital worker, but denied recent abuse. Petitioner’s co-worker testified that on the morning of the incident he did not observe anything unusual about Petitioner when he arrived for work. He further stated that Petitioner did not stumble or slur his words and nothing about his appearance indicated that he was intoxicated or impaired. Petitioner’s supervisor also stated that there were no noticeable signs that claimant had consumed alcohol or drugs.
Respondent retained Dr. Jerold Leikin, a toxicologist, to render opinions as to Petitioner’s alleged intoxication the morning ofthe incident. Dr. Leikin testified that Petitioner’s medical record revealed positive tests for both marijuana and cocaine. Dr. Leikin opined that Petitioner’s test results were “consistent with impairment due to marijuana” and that such results were indicative of “proximal use.” Dr. Leikin testified that Petitioner’s use of such controlled substances would result in “some visual acuity deficits,” such as Petitioner’s impaired ability to judge distance. Dr. Leikin ultimately opined that the reason Petitioner “might or could have” mistakenly stepped into an open stairway was from an impaired visual response or cognitive impaired response.
Respondent denied benefits based on the intoxication defense. The arbitrator rejected the respondent’s intoxication defense and found that Petitioner had sustained an injury arising out of and occurring in the course of his employment. The Commission adopted the decision of the Arbitrator and noted that Dr. Leikin only opined that Petitioner’s fall “might or could” have been due to his marijuana use. The Commission reiterated the fact that Dr. Leikin could not state the Petitioner’s consumption of controlled substances was the only cause of the accident. The fact remained that there were other factors of Petitioner’s employment that could have also caused his accident; namely the unguarded opening in the floor.
The Illinois Appellate Court affirmed the Commission’s decision based on the fact that Petitioner’s drug usage was a mere contributing factorandnot the sole causeofhis injury. The Court stated, “A Petitioner is not required to prove that employment was the sole principle cause, but only that the employment was a causative factor.”
Practice Tip
Intoxication isnot a slam dunk defense for a respondent. In order to prevail, a respondent must show that intoxication was the sole cause of the injury. In order to satisfy this burden a respondent can show that the intoxication was excessive. A respondent would benefit from providing testimony from the alleged intoxicated employee’s co-worker or supervisor that the employee’s intoxication impaired his abilities to perform his job duties. Such facts may persuade an arbitrator to rule that the intoxication was the sole cause of the accident.
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