CHARLES R. DINNEEN Claimant
v.
GRIFFITH STEEL ERECTION, INC. Respondent
And
AMERICAN INTERSTATE INS. CO. Insurance Carrier
AP-00-0450-124
CS-00-0267-393
Kansas Workers Compensation
Before the Kansas Workers Compensation Appeals Board
July, 2020
Kenton
D. Wirth, Terry J. Torline.
ORDER
Hon.
Pamela J. Fuller, J.
The
respondent and its insurance carrier (respondent), through
Terry J. Torline, appealed Administrative Law Judge (ALJ)
Pamela J. Fuller’s Award on Remand dated March 17,
2020. Kenton D. Wirth appeared for the claimant. The Board
heard oral argument on July 9, 2020. The Board considered the
record and the parties’ stipulations listed by the ALJ
in the Award, as well as the parties’ stipulation filed
on June 13, 2018.
Issues
1. Did
the claimant sustain personal injury by accident arising out
of and in the course of his employment on April 28, 2015?
2. Are
the respondent’s medical depositions part of the
record?
3. What
is the nature and extent of the claimant’s disability?
4. Did
the claimant willfully fail to use fall protection and or
recklessly violate the respondent’s safety rules or
regulations? Part of this issue includes whether Occupational
Safety and Health Administration (OSHA) interpretive letters
should be part of the evidentiary record.
5. Are
benefits disallowed based on the claimant’s urine drug
screen (UDS)? Should the drug screen results have been
admitted into evidence?
6. What
was the claimant’s average weekly wage (AWW)?
7. Is
the claimant entitled to future medical treatment and the
statutory unauthorized medical allowance?
8. Are
the claimant’s medical bills admissible? If so, is the
claimant entitled to payment of past medical bills associated
with his work injury?
Facts
This
case concerns an injury by accident on April 28, 2015. The
claimant, currently 56 years old, worked as a journeyman
ironworker for the respondent from 2012 forward. He
previously worked for the respondent as an ironworker and
worked, off and on, as an ironworker dating back to 2003. The
claimant, a union member, was subject to random drug tests
and took one approximately one month before his work
accident. The claimant signed a document allowing the
respondent to drug test him in the event of a work injury.
The day
of the accident, the claimant was scheduled to work at 7 a.m.
He arrived at work early and spoke with the
respondent’s owner, Jerry Griffith. Subsequently, the
respondent’s foreman, Clayton Leiker, arrived to direct
job duties. Mr. Leiker told the claimant they were going to
install steel perimeter angle on top of a building. Such work
is called “connecting.” To install steel, they
used spud wrenches, 18-20" tools carried in a tool belt,
which is part of a harness. The claimant and Mr. Leiker used
a scissor lift (lift) with a three-foot tall railing to
ascend to the work area 18-20' above ground. The two men
began working side by side at 7 a.m. and went up and down
together in the lift five or six times before the accident.
Two other employees used a lift in a separate area. According
to the claimant, neither he, his supervisor nor the other two
workers were using a safety line, called a lanyard, which can
be connected to a worker’s harness.
At
about 9 a.m., the claimant and Mr. Leiker intended to descend
in the lift to get more material. Mr. Leiker stepped down
from a beam into the lift. As the claimant began stepping
into the lift, his spud wrench, which was in his tool belt,
became stuck between steel and a block wall and jerked him
back, causing him to miss the lift and fall on a concrete
slab. The claimant’s left leg was badly broken and he
fractured his left wrist.
The
claimant was transported to St. Catherine Hospital in Garden
City. By his account, he was heavily medicated. The claimant
was transported to Wesley Medical Center (WMC), where he had
surgery for his broken left leg. His left wrist was placed in
a cast. A WMC document titled “TRAUMA
RESUSCITATION” states a UDS was needed. The test was
done and it revealed a concentration at or above 300
nanograms per milliliter (ng/ml) for opiates and at or above
1,000 ng/ml for amphetamines.
The
claimant required additional leg surgeries on May 1 and June
15, 2015.
The
claimant provided an evidentiary deposition on July 29, 2015.
He testified the distance between the edge of the building he
was working on and the edge of the lift was four or
four-and-one-half feet. He denied using medication or illegal
drugs in the week prior to, or just before, his fall. He
testified fall protection for steel erection crew workers is
covered by subpart R of OSHA regulations. He testified such
rules allow ironworkers the choice of using a lanyard when
working between 15-30' above ground, but they must be
tied off at 30' or higher.
On
August 17, 2015, John McMaster, M.D., prepared a report at
the respondent’s request. The doctor reviewed the
claimant’s medical records and deposition. The doctor
noted the UDS was performed in the normal course of treatment
to protect the claimant’s health and welfare. Dr.
McMaster stated no medical, scientific or technical evidence
suggested a reasonable medical explanation for the
claimant’s positive test for amphetamines, apart from
abuse or misuse. Dr. McMaster stated the presence of
amphetamines in excess of 1000 ng/ml was unrelated to any
medication in the weeks, days or hours prior to the claimant
providing the urine sample. Based on the level of
amphetamines identified and the doctor’s knowledge,
training and experience of the physiologic effects on an
individual who is otherwise amphetamine naive, Dr. McMaster
opined use/abuse of amphetamines represented a significant
contributory factor leading to the claimant’s impaired
capacity, competence and judgment with respect to performing
dangerous activities at heights.
Dr.
McMaster’s report did not comment about the
claimant’s spud wrench being stuck between steel and
concrete block. The report mistakenly indicated the claimant
fell off the lift, instead of falling when trying to get into
the lift.
A
preliminary hearing occurred September 1, 2015. The claimant
clarified he was not trying to step four-and-one-half feet
into the lift, but “stepped into the web of another
beam which cut the distance” to approximately two feet.
The claimant denied violating any safety rule, company rule,
or OSHA rule when trying to step into the lift. He testified
his supervisor never accused him of violating any safety rule
or told him to get into the lift in a different manner.
Getting in and out of a lift can be done dozens of times in a
work day. The claimant testified OSHA rules gave him the
option to use a lanyard between 15-30' above ground. He
denied taking any opiates or amphetamines immediately prior
to his work accident.
At the
hearing, the respondent offered Exhibits 5 and 6 as OSHA
interpretive letters concerning working from a lift.
Consistent with his earlier deposition, the claimant
testified the OSHA letters did not apply to ironworkers. He
testified OSHA rules allow ironworkers more freedom to move
about at heights.
After
the hearing, the ALJ ruled no safety violation occurred, but
denied benefits because the claimant was presumptively
impaired by drugs. A single Board Member reversed the
ALJ’s denial of benefits after finding K.S.A.
44-501(b)(3) requirements precluded admission of the drug
test. The Board Member found insufficient evidence to
establish the claimant was impaired by illegal drugs.
The
claimant underwent a second evidentiary deposition on
February 28, 2018. He acknowledged a discrepancy in prior
testimony regarding the distance between the steel and the
lift. The claimant testified Mr. Griffith observed the work
he performed between 7 and 9 a.m., and never accused him of
being impaired or contended he was violating any safety
regulation.
The
claimant testified the respondent promoted him to being a
general foreman. At the time of the accident, he was earning
$21.45 per hour, overtime pay and a per diem. The promotion
raised his pay to nearly $24 an hour and the per diem
continued. With the promotion, the respondent also gave the
claimant a company credit card and a company truck. As a
general foreman, the claimant is responsible to train workers
about job safety and he conducts weekly safety meetings. His
job requires him to occasionally read OSHA regulations, which
he does at least three or four times...
