54 Van Natta 42 (2002). RAUL SOLANO-ALCANTAR, Claimant.
Case Date | January 16, 2002 |
Court | Oregon |
Oregon Worker Compensation
2002.
54 Van Natta 42 (2002).
RAUL SOLANO-ALCANTAR, Claimant
42In the Matter of the Compensation of RAUL
SOLANO-ALCANTAR, ClaimantWCB Case No. 00-07025ORDER ON REVIEWWelch Bruun and Green, Claimant AttorneysJames B Northrop, SAIF Legal, Defense
AttorneysReviewing Panel:
Members Haynes, Bock, and Phillips Polich. MemberPhillips Polich dissents. The SAIF Corporation
requests review of Administrative Law Judge (ALJ) Tenenbaum's order that: (1)
found that claimant's unlawful consumption of a controlled substance was not
the major contributing cause of his left hand injury; and (2) set aside its
denial of claimant's injury claim. On review, the issue is course and scope of
employment. See ORS 656.005(7)(b)(C). We reverse. FINDINGS OF FACT We adopt the
ALJ's findings of fact with the following exception and supplementation. We do
not adopt the last two paragraphs of the ALJ's findings of fact. By agreement of the parties, this case was resolved on the
written record and the arguments of counsel. No testimony was offered. While using a chop saw at work, claimant sustained an injury
that resulted in partial amputation of the index and long fingers of his left
hand just above the first knuckles. (Ex. 2-1). The injury occurred after the
lunch break, at about 12:45 p.m. on Monday, August 21, 2000. (Ex. 1). Claimant
was examined/stabilized at the Hood River hospital at
about 1:10 p.m., and subsequently transferred to a hospital in Portland for
surgical repair. (Ex. 2-2). While at the Hood River hospital, at 2:20 p.m., claimant gave a urine sample, which tested
positive for the cocaine metabolite. (Exs. 7, 7A, 11a). Dr. Rapaport, M.D., a certified medical officer, reviewed claimant's
urine drug screen test. (Ex. 11a). Dr. Rapaport noted that the testing was
performed through gas chromatography/mass spectrometry (GC/MS) testing, with
the cocaine metabolite quantified at 108,032 ng/ml. (Exs. 7A, 11a). The
screening threshold for the cocaine metabolite is 300 ng/ml, and the
confirmation threshold is 150 ng/ml. (Ex. 7A). Dr.
Rapaport opined that claimant's test result indicated 54 Van Natta 42 (2002)44extremely elevated levels of cocaine, which appeared consistent with very
recent cocaine ingestion. (Ex. 11a-2). Dr. Jacobsen,
M.D., a physician specializing in addiction medicine, provided the only expert
opinion regarding causation. Dr. Jacobsen reviewed the record, including the
medical reports and the statements given by claimant, the plant manager (Mr.
Schultz), the millwright who was training claimant on the use of the chop saw
(Mr. Hirata), and coworkers (Mr. Quiroz and Mr. Esparza). (Ex. 13). Dr.
Jacobsen was also deposed. (Ex. 15). Dr. Jacobsen opined that, based on the
results of the urine test, it was medically probable that claimant had used
cocaine within hours before the accident. (Ex. 13-7). Dr. Jacobsen found that
claimant was impaired by the use of cocaine at the time of the accident and
that the cocaine impairment was the major contributing cause of the work
injury. (Exs. 13, 15). CONCLUSION OF LAW AND OPINION
The ALJ found, and claimant argues that SAIF did not
meet its burden of proof under ORS 656.005(7)(b)(C) that claimant's cocaine use
was the major contributing cause of the injury. We disagree. Claimant must first establish a prima facie
case of compensability, i.e., that the injury arose out of and
in the course of employment and that the work injury was a material
contributing cause of the disability or need for treatment. Grace L.
Walker, 45 Van Natta 1273 (1993), aff'd mem Walker v. Danner
ShoeManufacturing, 126 Or App 313 (1994). Here,
there is no doubt that claimant has established such a prima
facie case of compensability he was injured while performing
work duties (sawing lumber with a chop saw at work) and that injury resulted in
a need for treatment. Pursuant to ORS 656.005(7)(b)(C), however, a compensable
injury does not include an "[i]njury the major contributing
cause of which is demonstrated to be by a preponderance of the evidence the
injured worker's consumption of alcoholic beverages or the unlawful consumption
of any controlled substance, unless the employer permitted, encouraged or had
actual knowledge of such consumption."1 1 Here, there is no contention that the employer permitted,
encouraged or had actual knowledge of claimant's consumption of a controlled
substance. In any event, the evidence would not support such a contention.
54 Van Natta 42 (2002)45The "major contributing cause" is the cause that
contributes more to claimant's injuries than all other factors combined.
See, e.g., McGarrah v. SAIF, 296 Or
145, 146 (1983). A determination of the major contributing cause involves the
evaluation of the relative contribution of different causes of claimant's
injury and deciding which is the primary cause. See Dietz v.
Ramuda, 130 Or App 397 (1994), rev dismissed 320 Or
416 (1995). SAIF has the burden of proof on this issue. Harris v.
SAIF, 292 Or 683, 690 (1982) (burden of proof is upon the proponent of
a fact or position, the party who would be unsuccessful if no evidence were
introduced on either side); Erika W. Ortman, 51 Van Natta 2012
(1999). Finally, SAIF cannot meet its burden by
merely showing that claimant consumed a controlled substance; rather, SAIF must
establish that claimant was impaired by the controlled substance and that such
impairment was the major contributing cause of the injury. Janice A.
Neuenschwander, 49 Van Natta 1970 (1997); Ronald
Martin, 47 Van Natta 473 (1995).2 Based on the following reasoning, we
find that SAIF has met its burden of proof under this standard. Dr. Jacobsen, M.D., provides the only expert opinion
regarding claimant's impairment and the effect of that impairment. (Exs. 13,
15). Dr. Jacobsen is a specialist in addiction medicine. (Ex. 15-6). Claimant had worked at the employer's sawmill about three
months before the injury. Claimant worked Monday through Friday, from 7:00 a.m.
to 3:30 p.m. On Monday, August 21, 2000, at 8:00
a.m., claimant began training on the chop saw with Mr. Hirata, a millwright.
(Ex. 9A-5). Although the chop saw is simple to operate, it is physically
demanding work because the operator is constantly lifting lumber (with
dimensions of 2" x 4" or 2" x 6" and up to ten feet in length) 2 Citing Janice A.
Neuenschwander, 49 Van Natta at 1972, and Ronald
Martin, 47 Van Natta at 475 fn 3, claimant
contends that the "Board has previously held that the degree of...
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