54 Van Natta 42 (2002). RAUL SOLANO-ALCANTAR, Claimant.

Case DateJanuary 16, 2002
CourtOregon
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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