Baker v. Finke Logging Co., Inc., 032020 IDWC, IC 2017-016189

• Case Date: March 20, 2020
• Court: Idaho

ROBERT BAKER, Claimant, v. FINKE LOGGING CO., INC., Employer, and ASSOCIATED LOGGERS EXCHANGE, Surety, Defendants. No. IC 2017-016189 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho March 20, 2020          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATION          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee Brian Harper, who conducted a hearing in Lewiston, Idaho, on April 23, 2019. Scott Chapman represented Claimant, and Susan Veltman represented Defendants. The parties produced oral and documentary evidence at the hearing, took post-hearing depositions, and submitted briefs. The matter came under advisement on February 20, 2020.          ISSUES          The issues for resolution are:

1. Whether and to what extent Claimant is entitled to the following benefits:

a. Temporary total disability; and

b. Attorney fees.1

         2. Whether any income benefits to which Claimant would normally be entitled should be denied pursuant to Idaho Code § 72-208 due to his intoxication.          CONTENTIONS OF THE PARTIES          Claimant suffered a compensable injury to his left arm on May 18, 2017. Defendants paid Claimant’s medical bills but refused to pay his temporary disability benefits while he was in a period of recovery. Defendants wrongly rely on Idaho Code § 72-208 to support their denial. Although Claimant had indulged in drug use some days prior to the accident, he was not intoxicated at the time of his injury. His drug use was not a reasonable and substantial cause of his injury.          Defendants assert Claimant’s intoxication at the time of his accident, as supported by medical evidence and testimony, was a reasonable and substantial cause of his injuries in question. The application of Idaho Code § 72-208 is appropriate under the facts of this case.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The testimony of Claimant, Employer representative Janice Finke, and witness and co-owner of Employer, Corby Finke, taken at hearing;

2. Joint exhibits (JE) 1 through 11 admitted at hearing;

3. The post-hearing deposition transcript of Clayton Bunt, M.D., taken on July 26, 2019; and

4. The post-hearing deposition transcript of Michael Ludwig, M.D., taken on September 17, 2019.

         FINDINGS OF FACT          1. In May 2017 Claimant was employed as a logging truck driver for Employer. His job duties consisted primarily of hauling logs from the field to a mill in Lewiston.          2. Claimant was in the habit of washing his truck often. Sometimes Claimant would climb up truck’s “reach” to access the cab's roof.2 He testified he normally wore tennis shoes while washing his truck.          3. On May 18, 2017, Claimant was at Employer’s shop washing his truck. He began walking up the reach to wash the truck’s roof. While the reach was often partially covered with dirt and tree sap, which provided some traction, on this day the reach was clean, freshly painted and waxed. In addition, Claimant was wearing a pair of muck boots, not his tennis shoes.          4. Claimant fell and broke his left arm while attempting to scale the reach. He sought medical treatment at the hospital’s emergency room in Orofino.          5. Because of the industrial nature of the accident Claimant underwent a urinalysis, which came back positive for THC and methamphetamine.3          DISCUSSION AND FURTHER FINDINGS          1. Defendants accepted Claimant’s industrial accident claim. They paid Claimant’s medical expenses. Claimant had an acceptable recovery from his injury. He found employment once he reached medical stability and was released to return to work. Defendants refused to pay Claimant’s temporary disability benefits during his period of recovery, relying on the provisions of Idaho Code § 72-208.          2. Idaho Code § 72-208 deals with disallowance of income benefits in certain instances when the worker’s intoxication is a reasonable and substantial cause of an injury. The statute provides in relevant part;

(2) If intoxication is a reasonable and substantial cause of an injury, no income benefits shall be paid, except where the intoxicants causing the employee’s intoxication were furnished by the employer or where the employer permits the employee to remain at work with knowledge by the employer or his supervising agent that the employee is intoxicated.

(3) “Intoxication” as used in this section means being under the influence of alcohol or of controlled substances ….

         INTOXICATION          3. There is no direct evidence that Claimant was intoxicated as defined above at the time of the accident. Instead Defendants argue the following circumstantial evidence establishes Claimant’s intoxication:

• Claimant tested positive for controlled substances at the hospital after the accident;

• Claimant testified that when he used methamphetamine he stayed up all night, usually sleeping a day or so afterwards and Claimant was tired on the morning of the accident;

• Dr. Bunt testified that people who are on methamphetamine can be erratic and overconfident of their abilities;

• Dr. Bunt recalled Claimant was belligerent, angry, and demanding (including calling the doctor a veterinarian), at the hospital which could be indicative of Claimant being under the influence of methamphetamine;

• Dr. Ludwig testified that methamphetamine impairs a person's judgment and effects their impulsivity as well as altering a person’s ability to make rational and prudent decisions;

• Dr. Ludwig further testified that even when methamphetamine is “leaving a person’s system” they can become distracted and preoccupied with obtaining more of the drug;

• Both physicians opined that Claimant’s intoxication was a reasonable and substantial cause of his injury;

• Claimant’s testimony regarding the timing of his drug use is not credible, and in general Claimant is not a credible witness.

         Each of these allegations will be discussed in turn.          Detection of the Drugs          4. It is uncontroverted that Claimant tested positive for methamphetamine, marijuana, and opiates in the emergency room after the accident. Claimant admitted to using methamphetamine and marijuana prior to the accident. There is at least some indication the opiates were provided to Claimant after his accident in the form of morphine. ...