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...
