IN THE MATTER OF THE CLAIM OF: GARY ROLLINS, Claimant,
v.
BECO INC., Employer,
and
VISION INSURANCE PROGRAM, Insurer, Respondents.
W.C. No. 5-041-624-01
Colorado Workers Compensation
Industrial Claim Appeals Office
November 9, 2018
THE
ELEY LAWFIRM PC, Attn: SCOTT C ELEY ESQ, (For Claimant)
LEE
& BROWN LLC, Attn: M FRANCES MCCRACKEN ESQ, (For
Respondents)
FINAL
ORDER
The
respondents seek review of an order of Administrative Law
Judge Michelle Jones (ALJ) dated June 26, 2018, that denied
the respondents’ request to reduce the claimant’s
benefits through the application of a safety rule violation.
We affirm the decision of the ALJ.
Section
8-42-112(1), C.R.S., provides for a fifty percent reduction
in benefits if the employee is injured due to a willful
violation of a safety rule or the employee’s willful
failure to use safety devices provided by the employer.
Following
a hearing the ALJ found the claimant was severely injured on
March 14, 2017, when the truck he was driving for the
employer on Interstate 70 went off the road and continued
until it ran into the embankment flanking the highway. The
claimant sustained injuries to his spine, facial fractures
and brain hemorrhages. State Highway Patrol Officer McDowell
conducted an investigation of the accident after the claimant
had been dispatched to an emergency room. Due to the travel
pattern of the truck and the time of the accident at 4:30
a.m., Officer McDowell concluded the cause of the accident
was fatigue. He excluded drugs or alcohol as contributing
factors. The claimant was charged with careless driving.
Subsequent
to the return of the truck to the employer’s
facilities, employees cleaning out the truck discovered a
glass pipe with burn marks and containing a white residue. A
urine drug screen performed on the claimant at St. Anthony
Hospital after the accident revealed the presence of
amphetamines and MDMA (the drug Ecstacy). The claimant later
described to medical treaters that he had a long history
featuring the regular use of crystal methamphetamines,
cocaine and heavy drinking. He had previously been jailed for
use of these substances and had nonetheless been unable to
sustain abstinence from them. When Officer McDowell was asked
at hearing whether the information provided by the drug
screen and the discovery of the glass pipe caused him to
change his opinion regarding the cause of the accident, he
indicated that information could cause him to believe drug
use was...
