Barron v. Labor Commission , 2012 UT App 80 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
James Barron, ) OPINION
)
Petitioner, ) Case No. 20110313‐CA
)
v. )
) FILED
Labor Commission, Hogan & Associates ) (March 22, 2012)
Construction, and New Hampshire )
Insurance Company, ) 2012 UT App 80)
Respondents. )
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Original Proceeding in this Court
Attorneys: W. Scott Lythgoe, Deven J. Coggins, and Addison D. Larreau, Ogden,
for Petitioner
Alan L. Hennebold, Salt Lake City, for Respondent Labor Commission
Bret A. Gardner and Kristy L. Bertelsen, Salt Lake City, for Respondents
Hogan & Associates Construction and New Hampshire Insurance Co.
‐‐‐‐‐
Before Judges Voros, Roth, and Christiansen.
VOROS, Associate Presiding Judge:
¶1 Petitioner James Barron challenges the decision of the Labor Commission
denying him disability compensation. We set aside the Commission’s decision and
direct the Commission to reconsider Barron’s petition.
BACKGROUND
¶2 Barron is a welder and connector of structural iron. He was injured when he fell
from the second story of a building under construction. His workers’ compensation
claim for disability compensation was denied on the basis that he had drugs in his
system at the time of the accident.
¶3 The accident occurred on February 25, 2009. When Barron arrived at work that
morning, the welding foreman assigned him to cut a hole for a drain in the second‐story
floor, which was covered with temporary metal decking over structural steel beams.
Barron retrieved the cutting torch from one end of the structure and began unrolling the
hose as he walked to the location of the drain. He had no place to tie off his safety
harness while he moved across the floor. As Barron was unrolling the hose, he began
walking backward to make sure the hose did not kink. As he was doing so, he stepped
off the edge of the decking and fell more than fourteen feet to the concrete floor,
suffering injuries to his spine, arms, and liver, and a possible intracranial bleed.
¶4 A urine sample taken at the hospital the day of the accident tested positive for
cocaine metabolites, with a level of 493 ng/ml. The cutoff concentration level for the
initial screening test was 300 ng/ml, and the cutoff concentration for the confirmation
test was 150 ng/ml. Barron admitted to having shared a quarter of a gram of cocaine
with a friend two days before the accident.
¶5 Barron filed a workers’ compensation claim with the Commission, seeking
compensation for permanent partial disability, medical expenses, and recommended
medical care. His employer, Hogan & Associates Construction, and its insurance carrier
challenged disability compensation on the basis of Barron’s drug use, conceding that
the claim was otherwise compensable. The Administrative Law Judge (ALJ) awarded
medical costs but denied disability compensation. She concluded that the presence of
the cocaine metabolite in Barron’s system at the time of the accident triggered a
statutory presumption that drug use was the major contributing cause of his injury. See
generally Utah Code Ann. § 34A‐2‐302(4)(a) (2011). The ALJ further concluded that
Barron had failed to rebut this presumption, stating, “There is no showing that some
outside force caused [Barron] to fall.”
¶6 The Commission affirmed the ALJ’s decision. It rejected Barron’s assertion
regarding the quantity and timing of his cocaine use, based on a letter from a
toxicologist stating that the level of cocaine in Barron’s system “indicated use of a
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greater amount, more recent use, or more frequent use of cocaine than he admitted.”
The Commission also rejected Barron’s argument that the lack of safety measures was
the major contributing cause of his injuries, reasoning that Barron “was familiar with
the precarious and inherently dangerous circumstances of the construction site where
the accident occurred” and that “[t]he evidence shows that it was Mr. Barron’s own
actions that caused his fall rather than some other force causing him to fall.”
¶7 Neither the ALJ’s decision nor the Commission’s decision discussed testimony
offered by Barron indicating that he showed no signs of impairment at the time of the
accident.
ISSUE AND STANDARD OF REVIEW
¶8 Barron challenges the Commission’s conclusion that he did not present sufficient
evidence to rebut the presumption that his drug use was the major contributing cause
of his injuries. The Commission’s determination of causation under Utah Code section
34A‐2‐302 is a question of fact. See Lopez v. Kaiser Steel Corp., 660 P.2d 250, 251 (Utah
1983). However, embedded in Barron’s argument is a claim that the Commission made
an error of law in interpreting the statutory presumption. “[A]bsent a grant of
discretion, an agency’s interpretation or application of statutory terms should be
reviewed under the correction‐of‐error standard.” Esquivel v. Labor Comm’n, 2000 UT
66, ¶ 14, 7 P.3d 777; see also Utah Code Ann. § 63G‐4‐403(4)(d) (2011).
ANALYSIS
¶9 The Workers’ Compensation Act prohibits disability compensation when “the
major contributing cause of the employee’s injury” is the employee’s unauthorized use
of alcohol or a controlled substance.1 Utah Code Ann. § 34A‐2‐302(3)(b) (2011). The
statute creates a rebuttable presumption that use of a non‐prescribed controlled
substance is the major contributing cause when any amount of the substance or its
metabolite is found in the employee’s system at the time of the injury:
1. This penalty does not apply to accidents resulting in death or “when the employer
permitted, encouraged, or had actual knowledge of the [penalized] conduct.” See Utah
Code Ann. § 34A‐2‐302(3)(b) (2011). None of these exceptions apply here.
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[I]t is presumed that the major contributing cause of the
employee’s injury is the employee’s conduct described in
Subsection[] (3)(b)(i) . . . if at the time of the injury:
(i) the employee has in the employee’s system:
(A) any amount of a controlled substance or its
metabolites if the employee did not obtain the controlled
substance under a valid prescription[.]
Id. § 34A‐2‐302(4)(a). To trigger the presumption, the presence of the controlled
substance or its metabolite must be established by a chemical test that meets certain
statutory requirements, which is not challenged here. See id. The presumption may be
rebutted by evidence showing that (1) the chemical test was inaccurate; (2) the
employee did not unlawfully use a controlled substance; (3) the test results do not
exclude the possibility of passive inhalation of marijuana; (4) according to expert
medical opinion, the level of the controlled substance in the employee’s system does not
support a finding that drug use was the major contributing cause of the employee’s
injury; or (5) the employee’s drug use “was not the major contributing cause of the
employee’s injury.” Id. § 34A‐2‐302(4)(b).
¶10 Barron attempted to rebut the presumption under the fifth alternative. He
contends that he presented two types of evidence showing that his drug use was not the
major contributing cause of his injury. First, he argues that testimony showed that he
was not impaired the morning of the accident. Second, he argues that unsafe working
conditions at the job site were the major contributing cause of his injuries. Respondents
counter that testimony of nonimpairment in this case should be given “little, if any,
weight,” and suggest that for Barron to rebut the presumption under the fifth
alternative, he would have to provide evidence that “an outside force” or occurrence
was the major contributing cause, and he has not done so.
¶11 The ALJ and the Commission both seem to have read the statute to require
Barron to rebut the presumption by identifying a factor other than his drug use as the
major cause of his injury. The ALJ’s decision concludes that Barron failed to show that
his drug use was not the major contributing cause of his injury, because he made “no
showing that some outside force caused” his fall. Although three witnesses testified
that Barron was not impaired on the morning of the accident, the ALJ did not weigh or
otherwise discuss this evidence. Her analysis thus seems to assume that, for Barron to
show that drug use was not the major contributing cause of his injury, he was required
to identify some other “outside force” that was. Similarly, the Commission’s decision
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states, “The evidence shows that it was Mr. Barron’s own actions that caused his fall
rather than some other force causing him to fall through the second‐story decking.”
Given the Commission’s lack of findings regarding evidence of nonimpairment, this
statement also seems to assume that for Barron to show that drug use was not the major
contributing cause of his injury, he was required to identify “some other force” that
caused the injury.
¶12 That is not how we read the statute. The statute provides that the presumption
may be rebutted by evidence showing that the employee’s drug or alcohol use “was not
the major contributing cause of the employee’s injury.” Utah Code Ann. § 34A‐2‐
302(4)(b)(v). While identifying “some other force” as the major contributing cause of
the injury would surely be one way to show that the employee’s drug or alcohol use
was not the major contributing cause of the injury, nothing in the statutory language
limits the employee to this approach. Nothing in the statute, for example, would
prevent an employee from rebutting the presumption with evidence demonstrating
that, whatever the major contributing cause of his injury might have been, it could not
have been his drug or alcohol use, because he was not impaired at the time of the
accident. This approach is consistent with that taken by a number of states with similar
presumptions in their workers’ compensation statutes. See, e.g., Ward v. Hickory Springs
Mfg. Co., 248 S.W.3d 482, 486–87 (Ark. Ct. App. 2007) (relying on testimony of coworker,
supervisor, and manager); Forrester v. New Orleans Iron Works, 03‐1194, p. 4–10 (La. App.
5 Cir. 2/23/04), 869 So. 2d 216, 218–22 (relying on testimony of employee and coworker);
Construction Indus. Workers’ Comp. Grp. ex rel. Mojave Elec. v. Chalue, 74 P.3d 595, 598–99
(Nev. 2003) (relying on testimony of employee and foreman and report of medical
personnel who initially attended to employee after accident). We thus conclude that an
employee may rebut the statutory presumption with evidence that he was not impaired
at the time of the accident.
¶13 Barron made such an argument before the ALJ and the Commission. He relied
on his own testimony, that of his welding foreman and another coworker, and on
reports from the medical personnel who treated him immediately after the accident.
Barron testified at the hearing, “I wasn’t impaired when I went to work . . . . I was
fine.” A coworker—later terminated for marijuana use—gave Barron a ride to work that
morning and worked near Barron for part of the morning. He testified that Barron
seemed “normal” and that he did not notice anything unusual about Barron’s
appearance. The foreman who assigned Barron work the morning of the accident
testified that Barron looked like he had a head cold, with a red, sniffling nose. The
foreman also testified that he trusted Barron to work safely and that Barron was “very
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skilled” at working at dangerous heights, indeed, that he was “cat‐like.” Barron argues
that the foreman’s willingness to assign him multiple tasks on the second story that
morning also creates a reasonable inference that Barron did not appear to the foreman
to be impaired. Finally, several medical personnel who treated Barron the day of the
accident reported that Barron was “awake, alert, and oriented.”
¶14 Against this testimony, evidence of actual impairment was minimal. The record
contains a letter from the toxicologist noting the level of cocaine metabolites found in
Barron’s system, which was well above the concentration required for a confirmed
positive test. The letter also opines that this level of cocaine metabolite “indicated use
of a greater amount, more recent use, or more frequent use of cocaine than [Barron]
admitted.” However, the record contains no evidence of how this level of metabolite in
Barron’s system would have affected his mental and motor function, if at all, at the time
of the accident.2
¶15 In sum, Barron’s evidence of nonimpairment was substantial, but it was entirely
dependent on the credibility of his witnesses. We therefore direct the Commission to
determine whether Barron’s evidence of nonimpairment, when weighed against any
record evidence of impairment, is sufficient to establish that his drug use was not the
major contributing cause of his injury. Again, Barron need only demonstrate that his
drug use was not the major contributing cause of his injury; he need not demonstrate
what was.
¶16 The Commission referred to “the precarious and inherently dangerous
circumstances of the construction site.” We note that such environmental factors may
be relevant to a determination of whether Barron’s drug use was the major contributing
cause of his injury. A causation analysis necessarily requires the trier of fact to look at
all relevant circumstances. Cf. Murray v. Labor Comm’n, 2012 UT App 33, ¶ 37, 701 Utah
Adv. Rep. 28 (stating in the context of a workers’ compensation claim involving
preexisting conditions that “the totality of circumstances is relevant to a legal causation
analysis”). Thus, evidence of environmental factors may figure into the Commission’s
analysis when it weighs the evidence on remand.
2. Respondents state in their brief that such evidence of impairment had been
presented at the hearing, but they do not cite to the record to support this assertion.
Barron notes that no such evidence was presented, and we have not found any in our
review of the record.
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¶17 For example, in Forrester v. New Orleans Iron Works, 03‐1194 (La. App. 5 Cir.
2/23/04), 869 So. 2d 216, a Louisiana court upheld a trial court’s determination that an
employee had rebutted the presumption of intoxication based on testimony of
nonimpairment and the dangerous working conditions in which the accident occurred.
See id. at p. 11–13. The employee was working on a poorly lit roof at night, and he fell
off as he walked backward to unwind an extension cord. See id. at p. 6. Due to a
positive drug test, a presumption arose that the accident was caused by the employee’s
marijuana use. See id. at p. 2. The employee admitted smoking marijuana two nights
before the accident but “denied being under the influence of the drug at work.” See
id. at p. 7. The trial court determined the employee’s testimony was credible. See id. at
p. 11. A coworker testified that although he had not observed the employee closely, he
“had no reason to believe that [the employee] was impaired or under the influence of a
drug.” Id. at p. 7–8, 12. Distinguishing cases where the witnesses were found not to be
credible and where evidence had been introduced of the impairment effects of
particular drug concentrations, the appellate court concluded that, due to the testimony
of nonimpairment and the dangerous working conditions, the accident was “easily
explained by ordinary negligence.” See id. at p. 10–13.
¶18 Finally, we note that, as the Commission weighs the record evidence in
determining whether Barron has rebutted the statutory presumption, the presumption
itself carries no weight. A presumption is merely a burden‐shifting device; it is not
evidence. “‘The main purpose of presumptions is to shift the burden either of
producing evidence or of persuasion . . . . This does not mean that the fact finder may
consider or weigh the presumption as evidence.’” Massey v. Griffiths, 2007 UT 10, ¶ 11,
152 P.3d 312 (quoting In re Estate of Swan, 4 Utah 2d 277, 293 P.2d 682, 690 (1956)). “‘A
presumption is not evidence of anything, and only relates to a rule of law as to which
party shall first go forward and produce evidence sustaining a matter in issue.’” Id.(quoting Security State Bank v. Benning, 433 N.W.2d 232, 234 (S.D. 1988)).
¶19 In sum, under section 34A‐2‐301(3)(b)(i), subject to exceptions inapplicable here,
disability compensation may not be awarded to an employee when the major
contributing cause of the employee’s injury is the employee’s use of a non‐prescribed
controlled substance. See Utah Code Ann. § 34A‐2‐301(3)(b)(i) (2011). One way for an
employer to meet its burden of proving that the employee’s drug use was the major
contributing cause of his injury is with a positive drug test. See id. § 34A‐2‐302(4)(a).
Proof of a positive drug test triggers a presumption that the employee’s drug use was
the major contributing cause of his injury. See id. However, the employee may rebut
this presumption with evidence showing that his drug use was in fact not the major
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contributing cause of his injury. See id. § 34A‐2‐302(4)(b)(v). As the trier of fact
considers whether the employee has tipped the scales in his favor, the positive drug test
may weigh against him, but the presumption does not; the presumption merely
specifies that, if the scales are in equipoise, the employer wins.3
CONCLUSION
¶20 The presumption in the Workers’ Compensation Act that an employee’s drug or
alcohol use was the major contributing cause of an injury shifts the burden of
persuasion to the employee to rebut the presumption by a preponderance of the
evidence. Evidence that an employee was not in fact impaired at the time of the
accident—including testimony of the employee and others who observed the employee
near the time of the accident—is relevant to the Commission’s determination of whether
3. A presumption may “shift the burden either of producing evidence or of
persuasion.” Massey v. Griffiths, 2007 UT 10, ¶ 11, 152 P.3d 312 (citation and internal
quotation marks omitted). See generally In re Swan’s Estate, 4 Utah 2d 277, 293 P.2d 682,
686–89 (1956) (discussing the effect of rebuttable presumptions on burdens of
production and persuasion). In civil cases it is generally the latter. See generally 1 Utah
Practice, Mangrum & Benson on Utah Evidence 99–101, 104–06 (2010–2011). “In a civil
case, . . . unless a statute or [the Utah Rules of Civil Procedure] provide otherwise, the
party against whom a presumption is directed has the burden of proving that the
nonexistence of the presumed fact is more probable than its existence.” Utah R. Evid.
301(a); see also Burns v. Boyden, 2006 UT 14, ¶ 20, 133 P.3d 370 (following the persuasion‐
shifting approach); Baker v. Pattee, 684 P.2d 632, 635, 636 (Utah 1984) (same). But see In
re T.E., 2011 UT 51, ¶¶ 22–23, 266 P.3d 739 (following the production‐shifting approach
under a statutory presumption); Massey, 2007 UT 10, ¶¶ 12–13 (same). Here, section
34A‐2‐302(4)(b)(v) permits an employee to rebut the statutory presumption “by
evidence showing” the nonexistence of the presumed fact. Utah Code Ann. § 34A‐2‐
302(4)(b)(v) (2011). This provision, together with other provisions of section 34A‐2‐
302(4)(b), and the general rule in civil cases, convinces us that the presumption shifts to
the employee the burden of persuasion, not merely the burden of production. The
burden of persuasion is satisfied in workers’ compensation cases by a preponderance of
the evidence. See Ashcroft v. Industrial Comm’n, 855 P.2d 267, 269 (Utah Ct. App. 1993)
(“The quantum of evidence required to prove compensability is a preponderance of the
evidence.” (citing Lipman v. Industrial Comm’n, 592 P.2d 616, 618 (Utah 1979))).
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an employee rebutted the presumption. Because the Commission appears to have
decided the case under the erroneous assumption that such evidence was not relevant,
we direct the Commission to reconsider Barron’s petition under the standards we set
forth today.
____________________________________
J. Frederic Voros Jr.,
Associate Presiding Judge
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¶21 WE CONCUR:
____________________________________
Stephen L. Roth, Judge
____________________________________
Michele M. Christiansen, Judge
20110313‐CA 9