Intoxication Case

     Division IV of the Oklahoma Court of Civil Appeals has released for publication an interesting decision involving a marijuana intoxication defense and what parameters the Workers' Compensation Commission has in its review of an ALJ opinion.

    The case is DILLON ROSE V. BERRY PLASTICS CORP., Supreme Court No. 116,911. The opinion has not yet made it, at this hour, to the OSCN website.

    The claimant's hand was crushed in a "guillotine" machine in the plastics plant. The employer at first provided medical care, but then denied the claim when claimant tested positive for marijuana. At trial, the claimant testified he had smoked marijuana at 10 p.m. the night before, but came to work on time, attended a safety meeting, talked to a supervisor and co-employees, and worked at his regular machine until the first break. Then he went to another machine where a piece of plastic was stuck. There was video of the claimant and another worker trying to get the machine unstuck. Claimant put his hand in the machine, and to his dismay, his co-worker hit the on switch out of sight from the claimant. The injury occurred 10 hours after the claimant smoked marijuana.

    The ALJ found the claim compensable, finding that the claimant overcame, with clear and convincing evidence, the rebuttable presumption of non-compensability of an injury in which drugs are found in the system of the claimant. 85A O.S. Sec. 2(9)(b)(4). The ALJ found there was no evidence presented by the Employer which would in any way hint that claimant was intoxicated. 

    The Workers' Compensation Commission reversed the ALJ, opining that the claimant did not meet its burden to overcome the presumption. The Court of Civil Appeals reversed the Commission and reinstated the compensability order of the ALJ.

    Interestingly, the appellate panel clearly established what I believe is a newly-defined Standard of Review for the Commission. In heavily criticizing the WCC's opinion based upon what COCA calls inaccurate reading of the evidence, Judge Jerry Goodman and the unanimous panel ruled:

(1) The Commission can only reverse or modify an ALJ opinion if is against the clear weight of the evidence;

(2) The Commission, acting in its appellate capacity, is not "entitled to substitute its judgment for that of the agency as the weight of the evidence on fact questions. On fact questions, the Commission will examine the record only to determine if the evidence is supportive of the order and possesses sufficient substance as to induce a conviction as to the material facts."

(3) The Commission is not to draw conclusions from the evidence, but only to determine if there is sufficient evidence to support the ALJ opinion. There was no evidence presented, COCA said, that refuted claimant's complete description of the accident.

(4) In an intoxication presumption case, the lack of evidence that corroborates claimant's unrefuted testimony as to how the accident occurred, coupled with the lack of any contrary evidence, is sufficient to rebut the presumption imposed by statute.

(5) The Commission is not allowed to rule on the weight and admissibility of evidence, but merely weigh the evidence admitted to determine if it supported the ALJ's order. 

--Bob Burke