In re Claim of Heien, 112918 COWC, 5-059-799-01

Docket Nº:W.C. 5-059-799-01
Case Date:November 29, 2018
Court:Colorado
 
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IN THE MATTER OF THE CLAIM OF: BENJAMIN HEIEN, Claimant,
v.
DW CROSSLAND LLC, Employer,
and
LIBERTY MUTUAL INSURANCE, Insurer, Respondents.
W.C. No. 5-059-799-01
Colorado Workers Compensation
Industrial Claim Appeals Office
November 29, 2018
          THE ELEY LAW FIRM, Attn: SCOTT C ELEY ESQ, (For Claimant)           LEE & BROWN LLC, Attn: JOSEPH W GREN ESQ, C/O: EVAN M THOMPSON ESQ, (For Respondents)           FINAL ORDER          The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated June 28, 2018, that reduced the claimant's compensation benefits by 50 percent for the claimant's willful failure to obey a safety rule pursuant to §8-42-112(l)(b), C.R.S. We affirm.          This matter went to hearing on the issue of the claimant's violation of a safety rule pursuant to §8-42-112(l)(b), C.R.S. and use of a controlled substance in violation of §8-42-112.5(1), C.R.S. After hearing the ALJ entered factual findings that for purposes of review can be summarized as follows. The claimant was employed as a maintenance worker at a hotel. The claimant assumed night laundry duties for the employer in early September 2017. The claimant worked two days per week performing maintenance duties and two nights per week completing night laundry duties. The claimant was the only person who worked the night laundry position.          On October 14, 2017, the claimant was working the night laundry shift. He started a load of laundry in the employer's commercial washing machine at about 3:50 a.m. The claimant then folded towels in the backroom area. The claimant testified that after the washing machine had been running for approximately 30 minutes, he heard a "thumping sound" coming from the machine. The claimant stopped folding towels to determine where the sound was coming from. The claimant peered through a small glass window in the front of the washing machine and believed that he saw a partially full Coca-Cola bottle spinning inside the machine. The claimant was concerned that the soda bottle might explode and damage the sheets he was washing. Although the machine was spinning at a high rate of speed, the claimant opened the washing machine door and reached inside the machine basket with his right arm while it was still spinning. The claimant's right arm became wrapped in a sheet and he "flipped up like a cartwheel" and landed with his back towards the washing machine. The claimant initially believed that he had broken his arm but, when he looked up, his right arm was instead severed at the elbow. The claimant was able to call 911 for medical assistance.          Sergeant Baumgartner arrived on the scene in approximately one to two minutes. He applied a tourniquet to the claimant's right arm to diminish blood loss. The Denver Fire Department arrived approximately five to ten minutes later. Firefighters found the claimant's severed right arm in the washing machine and gave it to Denver Health. No other foreign objects were found in the washing machine. The claimant was subsequently transported to Denver Health for medical treatment with a total amputation of the right mid-forearm and a partial amputation of the proximal elbow.          The claimant testified that he has an extensive history of illicit drug use. The claimant began using heroin daily approximately four to five years ago as a substitute for prescription pain medications. The claimant also received treatment and counseling from a local methadone clinic called Behavioral Health Group. Methadone acts as a replacement for heroin and is designed to allow the claimant to function through an entire day without using heroin or feeling the effects from the heroin withdrawal. The claimant testified, however, that by midnight, the effects of the methadone would wear off and once this occurred, the claimant experienced opiate withdrawal symptoms including uncontrollable sneezing, diarrhea, vomiting and shaky hands. To avoid experiencing these withdrawal symptoms while at work, the claimant used heroin during his night laundry shift, so he could function until his morning visit with the Behavioral Health Group.          The claimant testified that he used a small amount heroin, about 1/10 of a gram, at about 12:00 am on October 14, 2017. 2.7 grams of heroin belonging to the claimant was also found at the scene of the accident. When the claimant arrived at Denver Health at approximately 4:45 am, physicians took a blood sample. The Colorado State University Analytic Toxicology Laboratory, through a facility called Chematox, conducted laboratory testing. The qualitative and quantitative findings from the Colorado State University analysis were positive for methadone, morphine, codeine EDDP and amitriptyline. The laboratory physician determined that both the substances that were detected, as well as the quantity that was detected from the blood draw, indicated that regardless of whether the heroin was used 24 hours earlier or 4 hours earlier or just before the injury, under any of these conditions the claimant was not normal and would have been adversely affected using heroin.          Dr. Verdeal testified that heroin can cause a person to behave impulsively, and cause a clouding of consciousness, disturbed cognitive effects, sedation, drowsiness, blurred vision, altered perception, illusions and...

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