Decision date: September 13, 2017Injury #15-09403527 pages
Summary
The Labor and Industrial Relations Commission reversed the Administrative Law Judge's decision that denied all workers' compensation benefits based on alleged marijuana use and a drug-free workplace policy violation. The Commission found that the ALJ erred in concluding the employee violated employer policy, that marijuana use caused the workplace fall, and that benefit forfeiture applied to medical treatment costs.
Archive Notice
This archive contains published Missouri Labor and Industrial Relations Commission workers' compensation decisions reproduced for research convenience. Official source links remain authoritative where provided. Joseph Ott, Attorney 67889, Ott Law Firm - Constant Victory - Personal Injury and Litigation maintains these public legal archives to support Missouri case research and to help prospective clients connect that research to the firm's courtroom practice.
Related Legal Help
Third-Party Injury Check
| Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION | |
| TEMPORARY AWARD ALLOWING COMPENSATION | |
| (Reversing Award and Decision of Administrative Law Judge) | |
| Injury No.: 15-094035 | |
| Employee: | Joseph Franklin |
| Employer: | AB Electrical, Inc. |
| Insurer: | Utah Business Insurance Company, Inc./S & C Claims Services, Inc. |
| This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the briefs, heard the parties' arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we reverse the award and decision of the administrative law judge (ALJ). | |
| Preliminaries | |
| At hearing, the ALJ identified the following issues in dispute: (1) medical causation; (2) liability for past medical expenses; (3) need for future medical care; (4) nature and extent of temporary total disability benefits; and (4) application of §287.120 RSMo involving drug penalty provisions. | |
| The ALJ’s award focused exclusively on the application of §287.120 RSMo. The ALJ found that employee used marijuana in violation of employer’s rule or policy and that employee’s marijuana use was the proximate cause of his work injury. The ALJ therefore concluded, pursuant to §287.120.6(2), that the employee forfeited any benefits he would have been entitled to under the Workers’ Compensation Law, including the cost of his medical treatment. As a result of this determination, the ALJ found all remaining issues moot. | |
| Employee filed a timely Application for Review with the Commission alleging the administrative law judge erred: | |
| (1) in concluding that employee violated employer’s rule and policy related to a drug-free workplace; | |
| (2) in finding that employee’s marijuana usage was the proximate cause of his fall at work on December 7, 2015; and | |
| (3) in finding that forfeiture of benefits under §287.120.6(2) applies to the cost of medical treatment. | |
| For the reasons set forth herein, we reverse the administrative law judge’s award and decision. |
At the time of the injury employee, Joseph Scott Franklin, was thirty-four years old. He had worked for employer, AB Electrical, Inc., for about three years.
On December 7, 2015, employee and a co-worker, Mike Mayabb, reported to work at around 8:00 a.m. Employee drove a company van to the worksite. Mr. Mayabb arrived in his personal vehicle, a truck. The two employees worked together as a team that day, as they had in the past. Their job involved repair of the plaster walls and ceiling beams at a commercial garage space.
The workers utilized scaffolding left at the site from a previous job. ${ }^{1}$ The scaffolding had no railing and the employees wore no harnesses. The two employees stood next to one another on the plywood top of the scaffolding. Mr. Mayabb considered the scaffold "as safe as any scaffold" and "within safety regulations." However, he noted that the job was "a little dangerous" because of the building's height. ${ }^{2}$ He stated, "We couldn't get railings on there, so we was just using a flat surface." ${ }^{3}$ Halogen work lights on stands illuminated the workspace. Each employee held a pan in one hand and a knife in the other to spread the plaster. In order to work on the bottom of the ceiling beam, Mr. Mayabb explained, "you had to duck just a little bit to go under it." ${ }^{4}$ Mr. Mayabb worked next to employee the entire day. He testified that during this time he saw no evidence that employee was intoxicated or impaired. Employee was not unsteady on his feet. Nor did the employee appear to be acting recklessly or dangerously.
Around 3:00 p.m. Mr. Mayabb got off the scaffolding because he ran out of plaster. He heard a noise from about thirty feet away. He then caught a glimpse of employee falling off the scaffold sideways about halfway to the concrete ground. Mr. Mayabb immediately knew employee was not all right because his mouth and nose were filled with blood. He called employer's office and reported the accident. Mr. Mayabb asked employer's secretary to call 911. Immediately thereafter he called 911 on his personal cell phone. An ambulance arrived quickly. The employee was nonresponsive. Emergency medical technicians administered advanced life support and rushed the employee to Centerpoint Medical Center. There, employee was assessed as having "a subdural hematoma with features of basal skull fracture and a comminuted fracture of the occipital bone and features of cerebral edema." ${ }^{5}$ Neurosurgeon Dr. Roger A. Ray immediately took the employee to the operating room where he performed an emergency left craniotomy. The employee's bone flap could not be replaced and was placed in storage. Attending physician Dr. Sigi P. Joseph's report stated "The patient's condition is very critical and [he] has a very poor prognosis." ${ }^{6}$
[^0]
[^0]: ${ }^{1} Transcript 450
{ }^{2} Id. 440.
{ }^{3} \mathrm{Id}.
{ }^{4} Id. 438.
{ }^{5} Id. 159.
{ }^{6} \mathrm{Id}$.
Improve: Joseph Franklin
- 3 -
On or about December 16, 2015, employer received a copy of a urine screen performed while employee was at Centerpoint Medical Center. The unsigned archive lab report indicated that at 1:27 a.m. on December 8, 2015, employee's urine screened positive for THC. The report specifically noted, "Drugs reported POSITIVE are by a Screening Method only. It is recommended that confirmation be requested on all POSITIVE Drugs of Abuse and other POSITIVE results if indicated. Results are to be used for medical, i.e. treatment purposes only."
Employer's owner and president, Byron Johnmeyer, had no knowledge of any issues relating to drug use by employee prior to the accident. Mr. Mayabb was aware of employer's drug-free workplace policy but made no report to employer of any drug use by employee the date of the injury or the following day. The employee has no recollection of the day of the accident. He acknowledged that he smoked marijuana "on occasions" but insisted he only smoked tobacco cigarettes on the job and had never smoked marijuana at work. Employer's policy has always allowed random drug tests but employer has never done random drug testing. Employer had never ordered a drug test of any kind prior to employee's December 7, 2015, accident.
On or about January 7, 2016, all of employer's employees attended an "OSHA-10" training course at owner/president's home. Mr. Byron Johnmeyer, employer's owner and president, testified that at this meeting he told all of his employees, "I needed everybody to tell the absolute truth as the owner of the company in order to protect them and the company under any circumstances." Mr. Mayabb's interpretation of Mr. Johnmeyer's statement was "they told us all to go in and tell the truth or none of us may have a job." Mr. Mayabb met employer's attorney, John Allen, for the first time at the OSHA training event held on or about January 7, 2016, at owner/president's home.
On January 15, 2016, almost six weeks after employee's injury, Mr. Mayabb signed an affidavit stating, in pertinent part:
7 Transcript, 456-457. The lab report also listed a positive opiate screen. Centerpoint Medical Center records document an injection of morphine to employee on the date of the injury. Claimant's Exhibit G, 112. Morphine is an opiate. Transcript 60. Employer/insurer has not asserted that employee's positive opiate screen proves use of a non-prescribed, controlled drug prior to his injury.
8 Id. 457.
9 Id. 9, 19.
10 Id. 45.
11 Id. 435.
12 Id. 449.
Enployee: Joseph Franklin
- 4 -
When deposed on May 5, 2016, Mr. Mayabb testified he did not type up the affidavit. He surmised that employer's attorney, Mr. John Allen, prepared the document. Mr. Mayabb initially stated that he signed the affidavit at owner and president's home. He then corrected himself and testified that Mr. Allen came out to a job site "to get me to sign the affidavit." Mr. Mayabb met with employer's attorney several times to discuss the circumstances surrounding the employee's accident but testified he never discussed signing an affidavit prior to January 15, 2016. Mr. Mayabb denied ever refusing to sign the affidavit. He stated he was not coerced or threatened by employer's attorney or its owner/president to say anything about what happened on the day of the accident. In response to the question, "Did you tell the absolute truth?" Mr. Mayabb responded "Yeah."
At his deposition, when asked how he knew that the pipe he saw employee smoking contained marijuana, Mr. Mayabb responded, "I just saw it." He then testified he saw employee by the driver side of his truck. When asked whether the marijuana pipe was in his truck, Mr. Mayabb stated, "I'm not sure where it was."
Mr. Mayabb's testimony is inconsistent with owner/president Mr. Johnmeyer's testimony at hearing. Mr. Johnmeyer testified that no marijuana or marijuana pipe was found in the company van employee drove to work the date of the injury and that he knew the marijuana employee allegedly smoked was from Mr. Mayabb's own vehicle because Mike Mayabb told him so.
Mr. Mayabb believed employee smoked cigarettes. He variously stated he didn't think employee was smoking a cigarette that day; didn't know if employee was smoking a cigarette; and thought that employee was "probably not" smoking a cigarette. Mr. Mayabb finally acknowledged he was "a ways away" and that a cigarette was "probably not what it was but I don't know." When later asked by counsel for employer/insurer whether he had any doubt that he saw the employee take two hits off of a marijuana pipe at or around 9:00 or 10:00 a.m. on the day of the accident, Mr. Mayabb responded "No."
Most critically, when questioned about the statement in his affidavit that he saw employee smoke marijuana on the job on other occasions, Mr. Mayabb stated, "I really don't recall saying that, but maybe I did then. I don't know." On May 5, 2016, Mr. Mayabb was unable to verify that he ever saw employee smoke marijuana on the job on other occasions. Ultimately, Mr. Mayabb admitted that his statement regarding the employee's marijuana use on other occasions was not true.
---
13 Transcript 434
14 Id. 440.
15 Id. 434.
16 Id. 435.
17 Id. 46-47.
18 Id. 435.
19 Id. 440.
20 Id.
21 Id.
22 Id. 440.
Improve: Joseph Franklin
- 5 -
Witness Mike Mayabb's testimony is laden with inconsistencies. Most critical of these is Mr. Mayabb's admission, on May 5, 2016, that he was unable to verify that he ever saw employee smoke marijuana on the job on other occasions. This testimony directly contradicts Mr. Mayabb's affidavit of January 15, 2016, in which he swore he saw the employee "smoke marijuana on the job on other occasions." Mr. Mayabb expresses varying degrees of certainty in his sworn testimony. At best, he provides a conclusion that the employee was smoking marijuana on the date of the accident based on vision only. This testimony does not represent a fact, but rather is simply Mr. Mayabb's expression of belief, a conclusory opinion without any credible foundation in the record before us. Because of critical inconsistencies and conflicts we discredit the testimony of Mr. Mayabb.
Employer's drug and alcohol policy is set out in its October 13, 2013, Employee Manual. In pertinent part, the policy prohibits any employee to "Report to
Full decision text continues in the plain-text archive copy.
December 15, 2020#15-064900
The LIRC affirmed the Administrative Law Judge's determination that Birnamwood Condominium Association was a statutory employer and that Meyers Trees & More, LLC was not properly insured under Missouri workers' compensation law. An employee of Meyers Trees was injured while performing tree-trimming work at the condominium complex after slipping off a roof.
July 29, 2020#09-099305
The Labor and Industrial Relations Commission affirmed the administrative law judge's award denying workers' compensation to employee Shelly Dale for injuries sustained in a fall. The Commission dismissed the employee's application for review as failing to meet procedural requirements under Commission rule 8 CSR 20-3.030(3)(A) for insufficient specificity in identifying the issues contested.
December 20, 2018#12-100528
The LIRC affirmed the ALJ's award allowing past and future medical compensation for Cynthia G. Null's work-related injuries sustained from a fall on ice in the employer's parking lot on December 24, 2012. The Commission rejected the employer's argument that the work injury must be the prevailing factor in causing the need for future medical treatment, finding that § 287.140 does not impose such a strict standard for medical benefits.
August 22, 2018#16-051794
The Commission affirmed the administrative law judge's award allowing workers' compensation benefits to employee Lois McDowell for injuries sustained from catching a two-wheeled cart on a doorway and falling in the hospital parking garage. A dissenting opinion argued the injury was not causally connected to employment because the risk of falling was equally present in normal nonemployment life.
January 25, 2018#14-077425
The Commission affirmed the administrative law judge's award granting workers' compensation benefits to Gale Hardwick for a fall injury sustained on October 9, 2014, while working at a Conagra Foods facility. The employee was determined to be totally and permanently disabled and is entitled to permanent total disability benefits of $486.17 per week beginning May 8, 2015.