Joseph Franklin v. AB Electrical, Inc.

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:

1. At around 9 or 10 a.m. on the day of Joseph's accident, I saw Joseph go to my truck and take two hits off of a marijuana pipe. I know that the pipe contained marijuana.

1. I was about 20 - 30 feet away from Joseph when he was smoking the marijuana and I could clearly see Joseph smoking the marijuana through the big glass garage doors.

1. I have seen Joseph smoke marijuana on the job on other occasions.

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 work, work, or attempt to work under the influence of drugs and/or alcohol." The policy provides for testing on a random basis. It further provides that any employee involved in a work-related accident may "be required to consent to a drug and/or alcohol test(s) immediately thereafter, but in no case later than thirty-two (32) hours after the accident." Employee acknowledged receipt of employer's employee manual on October 15, 2013. He subsequently signed a drug/alcohol testing release on September 11, 2015.

Forensic toxicologist Paul Cary testified by deposition. Mr. Cary served as director of the University of Missouri's toxicology laboratory for forty-one years. He is federally certified in analytical and forensic toxicology. Mr. Cary explained that a THC urine screen is a qualitative study, not a quantitative test. A urine screen detects carboxy THC, a metabolite or breakdown product of Delta 9 THC. Carboxy metabolites are physiologically inactive and have no relationship to concentration of THC in the blood.

Mr. Cary testified that, without evidence of a subject's tolerance due to past use, it is impossible to predict with any degree of certainty how much of the THC metabolite would be produced and how long it could linger in the body. A THC urine screen cannot show with any precision when the drug was last used, its strength or potency, or whether the drug was used frequently or only once. Based on the urine screen in this case, marijuana use may have occurred as early as ten days prior to the collection of the sample. Mr. Cary testified that in order to conclude that marijuana use was the proximate cause of the employee's injury he would need information about the dosage, time of ingestion, the employee's general state of health, whether he was habituated to the chemical, whether there are other chemicals involved in his potential impairment, the employee's height and weight, and the event in question. Mr. Cary considered a conclusion that employee was impaired on the date of the accident solely based on his THC urine screen and testimony of a co-worker that the employee took two hits of a marijuana pipe on the date of the accident to be mere speculation. He could not conclude within a reasonable degree of

Transcript 437,440.

Id. 449.

Employer/Insurer's Exhibit No. 4, Tr. 482.

Transcript 483.

Employer/Insurer's Exhibit No. 5, Tr. 515.

Employer/Insurer's Exhibit No. 7, Tr. 517.

scientific certainty that an individual who ingested marijuana at 9:00 a.m. would have any degree of impairment eight hours later. In his report of April 25, 2016, Mr. Cary summarized, "It is inappropriate and without scientific foundation to attempt to use a qualitative urine drug test result collected post-event to determine individual functioning capabilities at some earlier time."29

Christopher Long, a board certified PhD forensic toxicologist with St. Louis University School of Medicine, was deposed by employer/insurer. Dr. Long testified that employee was impaired on December 7, 2015, the date of the injury, because he had a positive drug test and a witness observed the employee smoking marijuana that day. Dr. Long stated that the testimony of Mike Mayabb "show[ed] the acute use at the time that [employee] was working and the impairment would follow that."30 Dr. Long found that employee definitely violated employer's policy relating to the use of non-prescription controlled drugs in the workplace and that his marijuana use was the proximate cause of his injuries. On cross-examination, Dr. Long admitted that a urine screen, in and of itself, cannot be used to correlate to any form of impairment. He agreed that carboxy THC is pharmacologically inactive and has absolutely no effect on humans. He acknowledged that a subject could test positive for use of marijuana even as long as a week prior to the screen. Dr. Long conceded that in the past he has testified that ingesting marijuana would not result in impairment five hours after ingestion unless "someone had a Rastafarian-type stogie. ${ }^{31}$ He further conceded he had no idea what employee's inhalation depth would have been. Dr. Long agreed there was no evidence in the medical records that the employee had the odor of marijuana on or about him when he arrived at the hospital on the date of the injury. He further agreed it is "quite possible" that the employee's drug screen would have been the same if he had ingested marijuana twentyfour or forty eight-hours before his fall and that employee could have fallen off scaffolding even absent impairment. He testified that employee's positive urine screen and Mike Mayabb's description of the employee taking two hits of marijuana "are the two legs" that supported his conclusion that the employee was impaired at the time of his fall. ${ }^{32}$

Penalty/forfeiture under $\S 287.120 .6$

Section 287.120.6 provides:

(1) Where the employee fails to obey any rule of policy adopted by the employer relating to a drug-free workplace or the use of alcohol or nonprescribed controlled drugs in the workplace, the compensation and death benefit provided for herein shall be reduced fifty percent if the injury was sustained in conjunction with the use of alcohol or nonprescribed controlled drugs (emphasis added).

[^0]

[^0]: ${ }^{29} Transcript 93-94.

{ }^{30} Id. 536.

{ }^{31} Transcript 541.

{ }^{32}$ Id. 543.

(2) If, however, the use of alcohol or nonprescribed controlled drugs in violation of employer's rule or policy is the proximate cause of the injury, then the benefits or compensation otherwise payable under this chapter for death or disability shall be forfeited. ${ }^{33}$

Section 287.120.6 provides an affirmative defense for the employer.

Section 287.080 provides:

The burden of establishing any affirmative defense is on the employer. . . . In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true.

The law is well settled that no "fact [may] be found, nor a claim or defense, nor an award be based upon mere speculation, suspicion or conjecture." Gass v. White Superior Bus Company and United States Fidelity \& Guaranty Company, 395 S.W. 501, 506 (Mo. App. 1965) citing Shrock v. Wolfe Auto Sales, Inc., Mo., 358 S.W.2d 812, 815 [3]. We may not base a finding on mere personal opinion unsupported by sufficient competent evidence. Kuykendall v. Gates Rubber Company 207 S.W.3d 694, 712. (Mo. App. 2006).

Furthermore, the contradictory testimony of a single witness relied on to prove a fact does not constitute substantial evidence and is not probative, especially when the fact in question is a material, essential element of a claim or defense. See Eimer v. Board of Police Commissioners of Kansas City 895 S.W.2d 117,123. (Mo. App. 1995), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003), citing Griggs v. A.B. Chance Co., 503 S.W.2d 697, 703 (Mo. App. 1973); and Graphenreed v. Ford Motor Company, 482 S.W.2d 68, 73 (Mo. App. 1972).

The penalty provisions of $\S 287.120 .6(1)$ only apply if the employee's injury was sustained in conjunction with the use of alcohol or nonprescribed drugs. Id. Employee's urinalysis does not show when or in what amount he may have last ingested marijuana. It did not identify the presence of any pharmacologically active substance in employee's system or the presence of any substances identified as controlled. It is undisputed that the employee's urinalysis, alone, is insufficient to establish that the employee's injury was sustained in conjunction with the use of a nonprescribed controlled drug.

Section 287.120.6(2) requires proof that use of alcohol or nonprescribed controlled drugs in violation of an employer's rule or policy was the proximate cause of the injury.

Dr. Long testified his opinion that employee's impairment was the proximate cause of his injury is contingent on the employee's urinanalysis in combination with the eye-witness testimony of Mike Mayabb that the employee took two hits off a marijuana pipe at around 9:00 or 10:00 a.m. the morning of the accident. Dr. Long admitted that his conclusion that impairment was the proximate cause of the employee's injuries cannot stand without the

[^0]

[^0]: ${ }^{33} We note that \S 287.120 .6 was amended, effective August 28, 2017. S.B. 66, 99^{\text {th }} Gen. Assembly, 1^{\text {st }}$ Regular Sess. (Mo. 2017). We do not believe these amendments are applicable to this case, nor do we believe their application would affect the outcome herein.

support of two "legs": (1) employee's positive THC urine screen and (2) Mike Mayabb's testimony.

The fact Mike Mayabb alleged regarding employee's marijuana usage at work on December 7, 2015, represents a material, essential element of employer/insurer's affirmative defense. In the absence of a finding that Mr. Mayabb's testimony is credible, there is no competent and substantial evidence in the record upon which to base a finding either that employee's December 7, 2015, work injury was sustained in conjunction with the use of a nonprescribed controlled drug or that employee's use of an unlawful controlled drug proximately caused his injury on that date.

As a result of our determination of the credibility of Mr. Mayabb, we need not consider whether Dr. Long's testimony that impairment from ingesting marijuana "lasts up to eight hours," is credible given his admission that in the past he has routinely used a maximum of five hours for impairment post ingestion. ${ }^{34}$

We find that employer has failed to meet its burden of establishing as an affirmative defense that the employee's injury was either sustained in conjunction with, or proximately caused by his use of any unlawful, controlled drug at work. The contradictory and conflicting testimony of employer's only eye-witness, Mike Mayabb, does not constitute credible or substantial evidence. A conclusion that the employee's injury was sustained in conjunction with marijuana use or proximately caused by his use of marijuana at work would be based on mere speculation, suspicion or conjecture. We therefore reverse the ALJ's finding that, pursuant to § 287.120.6(2), the employee has forfeited all benefits, including the cost of his medical treatment. Instead, we conclude that employee's compensation is not subject to the penalty or forfeiture provisions under $\S 287.120 .6$.

Section 287.020.3(1) RSMo sets forth the standard for medical causation applicable to this claim and provides, in relevant part, as follows:

An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

There is no evidence that employee's medical condition and disability was caused by anything other than the accident on December 7, 2015. Records of Madonna Rehabilitation Hospital, where the employee was transferred on December 29, 2015, describe the employee as "a previously healthy 34-year-old" whose past medical history was "essentially negative." ${ }^{35}$ As a direct result of his eight foot fall from scaffolding at work the employee suffered a subarachnoid hemorrhage, and a subdural hematoma. ${ }^{36}$

[^0]

[^0]: ${ }^{34}$ Employer/Insurer's Exhibit 8, Transcript 518-519; Id. 541.

${ }^{35} Id. 334.

{ }^{36} \mathrm{Id}$.

The employee's emergency left sided craniotomy on the date of his accident was a direct result of his injuries. We conclude that the accident of December 7, 2015, was the prevailing factor causing employee's injuries as well as his current disability. The employee has met his burden of proof with regard to the issue of medical causation.

Section 287.140 RSMo provides, in relevant part, as follows:

In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

Employee provided his medical records, the bills corresponding to the treatments described in the medical records, and testimony describing his course of treatment. Employer stipulated that the medical bills included in Claimant's Exhibit $\mathrm{F}^{37}$ were sent to employee, have not been paid, and, also, that the records reflect treatment the employee has received.

From this evidence, we find that employee incurred the medical treatment reasonably required to cure and relieve the effects of the injuries suffered as a consequence of the December 7, 2015, work injury during the period December 7, 2015, through March 21, 2016, from thirteen different providers as set out in Claimant's Exhibit F, in the amount of $\$ 820,743.42 .{ }^{38}$

Because it was not possible to replace the employee's bone flap at the time of his emergency surgery on December 7, 2015, the skin was closed over his dura and his bone flap kept in storage. Claimant thereafter returned to Centerpoint Medical Center on February 9, 2016, for a cranioplasty. Neurosurgeon Dr. Roger A. Ray, in a report dated June 22, 2016, noted that employee had difficulty with wound healing and was referred to Dr. Eagan at St. Luke's, who extensively re-worked the employee's bone flap and removed hardware. On that date, Dr. Ray concluded the employee had made satisfactory progress following head injury, cranioplasty and plastic surgical revision of his scalp wound. Dr. Ray thought at that point that the employee could gradually resume his daily routine, taking caution to protect his head. He noted some "depression type symptoms" and asked employee to consult with his primary care doctor about this. ${ }^{39}$ At the August 18, 2016, hearing, the employee testified that he very much hoped to return to work one day but that, as of that date, Dr. Barnam, his internal medicine doctor, had not released him to return to work. ${ }^{40}$

[^0]

[^0]: ${ }^{37} Transcript 98-99.

{ }^{38} \mathrm{Id}.

{ }^{39} \mathrm{Id} .365.

{ }^{40} \mathrm{Id}$. 18 .

Based on the above evidence we conclude that employee is entitled to, and employer is required to provide, that future medical treatment that may reasonably be required to cure and relieve employee of the effects of the injury.

Section 287.170 RSMo provides for the payment of temporary total disability benefits while an employee is engaged in the rehabilitative process following a compensable work injury. Greer v. Sysco Food Servs., 475 S.W.3d 655 (Mo. 2015).

The ALJ's award states that employer/insurer paid employee temporary total disability benefits in the amount of $\ 3,036.84. This amounts to six weeks of temporary total disability at the stipulated rate of $\ 506.14. As we have found, as of the date of the ALJ's hearing, August 18, 2016, the employee had not been released to return to work.

Consequently, we conclude that employee is entitled to, and employer is obligated to pay, weekly payments of temporary total disability benefits beginning January 18, 2016, at the stipulated temporary total disability benefit rate of $\ 506.14, and continuing as long as employee is engaged in the rehabilitative process and/or released by a physician to return to work.

We reverse the award of the administrative law judge. We conclude that employer/insurer did not meet its burden of proving by competent and substantial evidence that employee's injuries, sustained in the accident of December 7, 2015, were sustained in conjunction with the use of marijuana, a nonprescribed controlled drug.

Beginning January 18, 2016, employer is liable for temporary total disability benefits at the stipulated weekly rate of $\ 506.14.

Employer is ordered to pay employee's past medical expenses in the amount of $\ 820,743.42.

Employer is hereby ordered to provide employee with that medical treatment that may reasonably be required to cure and relieve the effects of his work injuries.

This award is subject to a lien in favor of Joseph A. Frank, Attorney at Law, in the amount of 25 % for necessary legal services rendered.

Any past due compensation shall bear interest as provided by law.

This award is only temporary or partial. It is subject to further order, and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of $\S 287.510$ RSMo.

The award and decision of Administrative Law Judge Mark Siedlik issued October 13, 2016, is attached solely for reference.

Given at Jefferson City, State of Missouri, this $13^{\text {th }}$ day of September 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupation under the Law? Yes
4. Date of alleged accident or onset of occupation disease: December 7, 2015
5. State location where alleged accident occurred or occupational disease was contracted: Jackson County, Missouri
6. Was above employee in employ of above employer at time of allege accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee, a laborer, was working on a scaffold when he fell and was injured.
12. Did accident or occupational disease cause death? No Date of Death: N/A
13. Part(s) of body injured by accident or occupation disease: Body as a whole

Issued by the Division of Workers' Compensation

Employee: Joseph Franklin

1. Nature and extent of any permanent disability: N/A
2. Compensation paid to-date for temporary disability: $\ 3,036.84
3. Value necessary medical aid paid to date by employer/insurer? $\ 0
4. Value necessary medical aid not furnished by employer/insurer? $\ 820,743.42
5. Employee's average weekly wage: $\ 759.21
6. Weekly permanent partial disability compensation rate: $\$ 506.14 / \ 464.58
7. Method wages computation: By agreement

1. Amount of compensation payable: $\ 0
2. Future Medical treatment awarded: No

On August 18, 2016, the Employer/Insurer and the Claimant appeared for a temporary hearing. The Division had jurisdiction to hear this case pursuant to § 287.110. The Claimant, Joseph Franklin, appeared in person and with counsel, Mr. Joseph A. Frank. The Employer and Insurer appeared through their attorney, Mr. John M. Allen. Mr. Bryon Johnmeyer, President of Employer AB Electrical, Inc., appeared on behalf of Employer as well. The evidence at trial consisted of the live testimony of Joseph Franklin, Kayla Jones and Bryon Johnmeyer, together with all documentary evidence set forth. The parties were granted time to file proposed awards, the receipt of which closed the record on September 12, 2016.

The parties stipulated to the following:

1. On or about December 7, 2015, AB Electrical, Inc. was an employer operating under the provisions of the Missouri Workers’ Compensation Law with its liability being fully insured;
2. On or about December 7, 2015, Joseph Franklin was an employee of AB Electrical, Inc., and was subject to the provisions of the Missouri Workers’ Compensation Law;
3. Venue in Kansas City, Missouri was appropriate for purposes of the temporary hearing;
4. Claimant's average weekly wage was 759.21 and the appropriate compensation rate for weekly benefits is 506.14 for temporary total disability benefits and $464.58 for permanent partial disability benefits;

1. Claimant suffered an injury arising out of a fall on or about December 7, 2015 while working for AB Electrical, Inc.;
2. Employer had notice of the alleged injury and the claim for compensation was filed within the time prescribed by law; and
3. Employer has paid six weeks of temporary total disability compensation.

The issues to be determined by this hearing are:

1. Whether the benefits or compensation payable to Claimant are forfeited pursuant to the penalty provision in $\S 287.120 .6(2)$;
2. If the benefits or compensation payable to Claimant are not forfeited pursuant to $\S 287.120 .6(2)$, whether the 50 % penalty provision in $\S 287.120 .6(2)$ should apply in this case;
3. Whether Claimant is entitled to past medical benefits; and
4. Whether Claimant is entitled to future medical care and treatment as a result of the alleged injury.

The Claimant testified on his own behalf, offered the live testimony of his sister, Kayla Jones, and offered the following exhibits into evidence, all of which were admitted:

Claimant's Exhibit A -- Deposition of Paul Cary

Claimant's Exhibit B -- CV Of Paul Cary

Claimant's Exhibit C -- Report of Paul Cary

Claimant's Exhibit D -- Centerpoint Medical Center Drug Screen Report

Claimant's Exhibit E -- Photograph of Scaffold

Claimant's Exhibit F -- List of Medical Bills of Claimant Joseph Franklin

Claimant's Exhibit G --Medical Bills of Centerpoint Medical Center

Claimant's Exhibit H -- Medical Records of Centerpoint Medical Center

Claimant's Exhibit I -- Medical Bills of Madonna Rehabilitation Hospital

Claimant's Exhibit J -- Medical Records of Madonna Rehabilitation Hospital Claimant's

Claimant's Exhibit K -- Medical Bills of Neurosurgery Associates of Jackson County

Claimant's Exhibit L -- Medical Records of Neurosurgery Associates of Jackson County

Claimant's Exhibit M --Medical Bills of American Medical Response, Inc.

Claimant's Exhibit N -- Medical Records of American Medical Response, Inc.

Claimant's Exhibit O -- Medical Bills of United Imaging Consultants, LLC

Claimant's Exhibit P -- Medical Bills of United Surgical Associates of Kansas City

Claimant's Exhibit Q -- Medical Bills of Midwest Aortic and Vascular Institute

Claimant's Exhibit R -- Medical Bills of Rehabilitation Specialists Physicians Group

Claimant's Exhibit S -- Medical Bills of ENT Associates of Greater Kansas City

Claimant's Exhibit T -- Medical Bills of LabCorp

Claimant's Exhibit U -- Medical Bills of Digestive Health Specialists

Claimant's Exhibit V -- Medical Bills of Midwest Pathology Associates, PCCL

Claimant's Exhibit W -- Legal Fee Agreement between Claimant and The Law Offices of Joseph A. Frank, L.L.C.

Bryon Johnmeyer testified live on behalf of Employer/Insurer, and Employer/Insurer offered the following exhibits into evidence, all of which were admitted:

Employer/Insurer No. 1 -- Affidavit of Mike Mayabb

Employer/Insurer No. 2 -- Deposition of Mike Mayabb

Employer/Insurer No. 3 -- Laboratory Results from Centerpoint Medical Center

Employer/Insurer No. 4 -- Employee Manual

Employer/Insurer No. 5 -- Receipt \& Acknowledgement of Employee Manual

Employer/Insurer No. 6 -- Drug/Alcohol Testing Policy

Employer/Insurer No. 7 -- Drug/Alcohol Testing Release

Employer/Insurer No. 8 -- Dr. Christopher Long's Report

Employer/Insurer No. 9 -- Dr. Christopher Long's CV

Employer/Insurer No. 10 -- Deposition of Dr. Christopher Long

Claimant Joseph Franklin is a 34-year-old man who was working as a laborer for AB Electrical, Inc. on December 7, 2015. On that day, Claimant fell off scaffolding. Claimant does not remember anything about the day of the accident. Claimant's first memory after the accident was waking up at Madonna Rehabilitation Hospital in Nebraska about one month after the accident.

Mike Mayabb, another employee of AB Electrical, Inc., testified by way of an affidavit and a deposition. Mr. Mayabb was working with the Claimant on December 7, 2015. Mr. Mayabb and Claimant started work on that day at around 8:00 a.m. At around 9 or 10 a.m., Mr. Mayabb saw Claimant go to Mr. Mayabb's truck and take two hits off of a marijuana pipe. Mr. Mayabb was about 20-30 feet away from Claimant when he was smoking the marijuana, and Mr. Mayabb could clearly see the Claimant smoking the marijuana through big glass garage doors. Mr. Mayabb knows that the pipe contained marijuana.

Around 3:00 p.m. on December 7, 2015, Claimant and Mr. Mayabb were plastering walls while standing on the scaffolding. Claimant and Mr. Mayabb had used the scaffolding for a couple weeks prior to December 7, 2015. Before the accident on December 7, 2015, Mr. Mayabb did not see Claimant slip or fall on the scaffold. Mr. Mayabb had never fallen or slipped off that scaffolding. Mr. Mayabb ran out of plaster, so he climbed off the scaffolding to clean his pan and

get more plaster. Claimant continued to work on the scaffolding. About five minutes after Mr. Mayabb got off the scaffolding, Claimant fell. Mr. Mayabb did not see Claimant fall, and he did not see Claimant make contact with the ground.

After Claimant fell, Mr. Mayabb ran over to Claimant to see if he was alright, and he called 911. After Mr. Mayabb called 911, he kept talking to Claimant and trying to communicate with Claimant. An ambulance arrived a few minutes after Mr. Mayabb called 911. They worked on Claimant for a few minutes, and then took him to the hospital.

Kayla Jones, Claimant's sister, testified on his behalf. Ms. Jones testified that after she found out that Mr. Mayabb had signed the affidavit attesting to the fact that Claimant smoked marijuana on the day of the accident, she called Mr. Mayabb. Ms. Jones talked to Mr. Mayabb about whether Mr. Franklin used marijuana at work, and Mr. Mayabb told her he could not recall at all. Mr. Mayabb never told Ms. Jones that Claimant was not smoking marijuana on the day of the accident. Ms. Jones testified Mr. Mayabb was basically saying that he was forced to sign the affidavit.

Mr. Mayabb testified that no one ever threatened to fire him if he did not say he saw Claimant smoke marijuana at the job site on December 7, 2015. And Mr. Mayabb never told anybody that he was threatened to be fired if he did not say that Claimant smoked marijuana on December 7, 2015. Mr. Mayabb testified he told Ms. Jones that Brian Johnmeyer told all of the employees of AB Electrical, Inc. to tell the absolute truth or none of them may have a job. Mr. Johnmeyer told them that on around January 7, 2016 when the employees of AB Electrical, Inc. were taking an OSHA safety class. Mr. Mayabb believed Mr. Johmeyer was stating that he could lose the company if the employees of AB Electrical, Inc. were not completely honest. Mr. Mayabb told the absolute truth, and there is no doubt in his mind that he saw Claimant take two hits off of a marijuana pipe at around 9 or 10 a.m. on the day of Claimant's accident.

Bryon Johnmeyer testified on behalf of Employer/Insurer. Mr. Johnmeyer testified he told all of the employees at AB Electrical, Inc. that he could not control what happened if they did not tell the truth. Mr. Johnmeyer made that statement when all of the employees of AB Electrical, Inc. were taking an OSHA safety class. Mr. Johnmeyer's statement was not related specifically to Claimant's accident. Mr. Johnmeyer never threatened Mr. Mayabb in order to get him to testify Claimant smoked marijuana on December 7, 2015, the day of his accident.

Mr. Paul Cary testified on behalf of the Claimant. Mr. Cary has a bachelor of arts degree in sociology. He also received a master's of science degree in medical management from the school of social work. Mr. Cary does not have a masters in toxicology or a Ph.D. in toxicology, he is not a medical doctor, and he does not have any medical training. The scope of Mr. Cary's opinion was directed toward the results of Claimant's positive drug test. Mr. Cary's only opinion in this case is that the positive drug test results by themselves cannot be used to determine or conclude subject impairment. Mr. Cary did not offer an opinion as to whether Claimant was

under the influence of marijuana at the time of his accident on December 7, 2015, and he did not offer an opinion as to whether Claimant's use of marijuana in violation of Employer's drug policy was the proximate cause of his injuries.

Mr. Cary admits the positive drug test proves Claimant had THC (the metabolite for marijuana) in his body at 1:27 a.m. on December 8, 2015. However, Mr. Cary's opinion is that the urine screen is a qualitative test, so it only proves that the THC was there. Because Mr. Cary's opinion was directed toward the results of the drug test, he did not consider the fact that there was a witness who saw Claimant take two hits off of a marijuana pipe on the day of the accident. If the scope of Mr. Cary's opinion was directed to the question of whether or not Mr. Franklin was under the influence of marijuana at the time of his accident on December 7, 2015, Mr. Cary would have considered the fact that there was a witness who saw Claimant take two hits off of a marijuana pipe the morning of the accident. According to Mr. Cary, that information was relevant to the events of that day. Nonetheless, Mr. Cary did not consider that information in formulating his opinion.

On cross-examination, Mr. Cary testified certain aspects of impairment or ability to function less than optimal as a result of marijuana use can extend beyond eight hours. According to Mr. Cary, marijuana impacts the ability to perceive accurately your environment around you; the ability to focus and maintain vigilance on a particular target, whether that is driving an automobile or in a workplace environment; the ability to make appropriate decisions to process information; psychomotor skills; gross motor control; fine motor control; vision; and even the attention required to stand on a scaffold. Some of those decrements could last longer than three to five hours. Mr. Cary admitted there are some psychomotor skills, judgment skills and perception skills that may be affected beyond eight hours after ingestion of marijuana, and certain abilities to function might be affected beyond eight hours after ingestion of marijuana.

Dr. Christopher Long testified on behalf of Employer/Insurer. Dr. Long has been working in the field of toxicology about 40 years. His education includes a bachelor's degree in chemistry from Marist College in New York, a master's degree in medical biology from Long Island University, a second master's degree in pharmacology/toxicology from St. John's University in New York, and a doctorate in toxicology from St. John's University. Dr. Long has been board certified in forensic toxicology since 1986. Dr. Long's opinion is that Claimant was impaired due to the use of marijuana at the time of his accident on December 7, 2015. Dr. Long's opinion in that regard is based on the fact that Claimant had a positive drug test, and the fact that Mr. Mayabb observed Claimant smoking marijuana on the day of the accident.

The drug test was positive for THC, and that positive drug test showed that Claimant had used marijuana. Dr. Long testified the fact that Claimant took two hits from a marijuana pipe showed his dosing. According to Dr. Long, people self-titrate, which means they inhale marijuana until they start to get the desired effect, and they continue to inhale enough to get the

desired effect. Dr. Long's opinion is that Claimant took two hits from a marijuana pipe to get the desired effect.

According to Dr. Long, the marijuana Claimant smoked the morning of December 7, 2015 would have affected him at the time of his accident later that afternoon. Claimant's marijuana use would have distorted his perception, cognitive function, reaction time, and vision. According to Dr. Long, all of those things are extremely necessary and important when you are working on scaffolding, and all of those things were impaired by Claimant's use of marijuana. Dr. Long testified that it was quite possible that Mr. Mayabb would not have noticed Claimant's impairments. Therefore, the fact that Mr. Mayabb did not see any impairment in Claimant at the time of his accident on December 7, 2015 does not indicate that Claimant was not impaired at the time of the accident.

Dr. Long reviewed AB Electrical, Inc.'s policy relating to the use of alcohol or nonprescribed drugs in the workplace. Dr. Long's opinion is that Claimant definitely violated AB Electrical, Inc.'s anti-drug policy. The basis for Dr. Long's opinion in that regard is that Claimant used marijuana on the work premises, which is using a controlled substance while at work.

Dr. Long's opinion is that Claimant's use of marijuana on December 7, 2015 in violation of AB Electrical, Inc.'s policy was the proximate cause of his injuries. According to Dr. Long, if you are not functioning properly, then accidents happen.

On cross-examination, Dr. Long testified the effects of marijuana last up to eight hours, and Claimant was within that window when the accident occurred. According to Dr. Long, there are some studies indicating the effects of marijuana can last up to 24 hours. Dr. Long does not use the 24 hours. Dr. Long agreed with the statement "marijuana's impairment is reasonably up to five hours post ingestion." According to Dr. Long, the five hours is a conservative number that he uses routinely. Although Dr. Long has been more conservative in other cases in which he said the effects of marijuana reasonably lasted up to five hours post-ingestion, he was being more accurate in this case to say that the effects of marijuana can last up to eight hours post-ingestion.

Claimant Joseph Franklin is a 34-year-old man who was working as a laborer for AB Electrical, Inc. on December 7, 2015. On that day, Claimant fell off scaffolding. Claimant does not remember anything about the day of the accident. Claimant's first memory after the accident was waking up at Madonna Rehabilitation Hospital in Nebraska about one month after the accident.

Mike Mayabb, another employee of AB Electrical, Inc., testified by way of an affidavit and a deposition. Mr. Mayabb was working with the Claimant on December 7, 2015. Mr. Mayabb and Claimant started work on that day at around 8:00 a.m. At around 9 or 10 a.m., Mr.

Mayabb saw Claimant go to Mr. Mayabb's truck and take two hits off of a marijuana pipe. Mr. Mayabb was about 20-30 feet away from Claimant when he was smoking the marijuana, and Mr. Mayabb could clearly see the Claimant smoking the marijuana through big glass garage doors. Mr. Mayabb knows that the pipe contained marijuana.

Around 3:00 p.m. on December 7, 2015, Claimant and Mr. Mayabb were plastering walls while standing on the scaffolding. Claimant and Mr. Mayabb had used the scaffolding for a couple weeks prior to December 7, 2015. Before the accident on December 7, 2015, Mr. Mayabb did not see Claimant slip or fall on the scaffold. Mr. Mayabb had never fallen or slipped off that scaffolding. Mr. Mayabb ran out of plaster, so he climbed off the scaffolding to clean his pan and get more plaster. Claimant continued to work on the scaffolding. About five minutes after Mr. Mayabb got off the scaffolding, Claimant fell. Mr. Mayabb did not see Claimant fall, and he did not see Claimant make contact with the ground.

After Claimant fell, Mr. Mayabb ran over to Claimant to see if he was alright, and he called 911. After Mr. Mayabb called 911, he kept talking to Claimant and trying to communicate with Claimant. An ambulance arrived a few minutes after Mr. Mayabb called 911. They worked on Claimant for a few minutes, and then took him to the hospital.

Kayla Jones, Claimant's sister, testified on his behalf. Ms. Jones testified that after she found out that Mr. Mayabb had signed the affidavit attesting to the fact that Claimant smoked marijuana on the day of the accident, she called Mr. Mayabb. Ms. Jones talked to Mr. Mayabb about whether Mr. Franklin used marijuana at work, and Mr. Mayabb told her he could not recall at all. Mr. Mayabb never told Ms. Jones that Claimant was not smoking marijuana on the day of the accident. Ms. Jones testified Mr. Mayabb was basically saying that he was forced to sign the affidavit.

Mr. Mayabb testified that no one ever threatened to fire him if he did not say he saw Claimant smoke marijuana at the job site on December 7, 2015. And Mr. Mayabb never told anybody that he was threatened to be fired if he did not say that Claimant smoked marijuana on December 7, 2015. Mr. Mayabb testified he told Ms. Jones that Brian Johnmeyer told all of the employees of AB Electrical, Inc. to tell the absolute truth or none of them may have a job. Mr. Johnmeyer told them that on around January 7, 2016 when the employees of AB Electrical, Inc. were taking an OSHA safety class. Mr. Mayabb believed Mr. Johmeyer was stating that he could lose the company if the employees of AB Electrical, Inc. were not completely honest. Mr. Mayabb told the absolute truth, and there is no doubt in his mind that he saw Claimant take two hits off of a marijuana pipe at around 9 or 10 a.m. on the day of Claimant's accident.

Bryon Johnmeyer testified on behalf of Employer/Insurer. Mr. Johnmeyer testified he told all of the employees at AB Electrical, Inc. that he could not control what happened if they did not tell the truth. Mr. Johnmeyer made that statement when all of the employees of AB Electrical, Inc. were taking an OSHA safety class. Mr. Johnmeyer's statement was not related

specifically to Claimant's accident. Mr. Johnmeyer never threatened Mr. Mayabb in order to get him to testify Claimant smoked marijuana on December 7, 2015, the day of his accident.

Mr. Paul Cary testified on behalf of the Claimant. Mr. Cary has a bachelor of arts degree in sociology. He also received a master's of science degree in medical management from the school of social work. Mr. Cary does not have a masters in toxicology or a Ph.D. in toxicology, he is not a medical doctor, and he does not have any medical training. The scope of Mr. Cary's opinion was directed toward the results of Claimant's positive drug test. Mr. Cary's only opinion in this case is that the positive drug test results by themselves cannot be used to determine or conclude subject impairment. Mr. Cary did not offer an opinion as to whether Claimant was under the influence of marijuana at the time of his accident on December 7, 2015, and he did not offer an opinion as to whether Claimant's use of marijuana in violation of Employer's drug policy was the proximate cause of his injuries.

Mr. Cary admits the positive drug test proves Claimant had THC (the metabolite for marijuana) in his body at 1:27 a.m. on December 8, 2015. However, Mr. Cary's opinion is that the urine screen is a qualitative test, so it only proves that the THC was there. Because Mr. Cary's opinion was directed toward the results of the drug test, he did not consider the fact that there was a witness who saw Claimant take two hits off of a marijuana pipe on the day of the accident. If the scope of Mr. Cary's opinion was directed to the question of whether or not Mr. Franklin was under the influence of marijuana at the time of his accident on December 7, 2015, Mr. Cary would have considered the fact that there was a witness who saw Claimant take two hits off of a marijuana pipe the morning of the accident. According to Mr. Cary, that information was relevant to the events of that day. Nonetheless, Mr. Cary did not consider that information in formulating his opinion.

On cross-examination, Mr. Cary testified certain aspects of impairment or ability to function less than optimal as a result of marijuana use can extend beyond eight hours. According to Mr. Cary, marijuana impacts the ability to perceive accurately your environment around you; the ability to focus and maintain vigilance on a particular target, whether that is driving an automobile or in a workplace environment; the ability to make appropriate decisions to process information; psychomotor skills; gross motor control; fine motor control; vision; and even the attention required to stand on a scaffold. Some of those decrements could last longer than three to five hours. Mr. Cary admitted there are some psychomotor skills, judgment skills and perception skills that may be affected beyond eight hours after ingestion of marijuana, and certain abilities to function might be affected beyond eight hours after ingestion of marijuana.

Dr. Christopher Long testified on behalf of Employer/Insurer. Dr. Long has been working in the field of toxicology about 40 years. His education includes a bachelor's degree in chemistry from Marist College in New York, a master's degree in medical biology from Long Island University, a second master's degree in pharmacology/toxicology from St. John's University in New York, and a doctorate in toxicology from St. John's University. Dr. Long has been board

certified in forensic toxicology since 1986. Dr. Long's opinion is that Claimant was impaired due to the use of marijuana at the time of his accident on December 7, 2015. Dr. Long's opinion in that regard is based on the fact that Claimant had a positive drug test, and the fact that Mr. Mayabb observed Claimant smoking marijuana on the day of the accident.

The drug test was positive for THC, and that positive drug test showed that Claimant had used marijuana. Dr. Long testified the fact that Claimant took two hits from a marijuana pipe showed his dosing. According to Dr. Long, people self-titrate, which means they inhale marijuana until they start to get the desired effect, and they continue to inhale enough to get the desired effect. Dr. Long's opinion is that Claimant took two hits from a marijuana pipe to get the desired effect.

According to Dr. Long, the marijuana Claimant smoked the morning of December 7, 2015 would have affected him at the time of his accident later that afternoon. Claimant's marijuana use would have distorted his perception, cognitive function, reaction time, and vision. According to Dr. Long, all of those things are extremely necessary and important when you are working on scaffolding, and all of those things were impaired by Claimant's use of marijuana. Dr. Long testified that it was quite possible that Mr. Mayabb would not have noticed Claimant's impairments. Therefore, the fact that Mr. Mayabb did not see any impairment in Claimant at the time of his accident on December 7, 2015 does not indicate that Claimant was not impaired at the time of the accident.

Dr. Long reviewed AB Electrical, Inc.'s policy relating to the use of alcohol or nonprescribed drugs in the workplace. Dr. Long's opinion is that Claimant definitely violated AB Electrical, Inc.'s anti-drug policy. The basis for Dr. Long's opinion in that regard is that Claimant used marijuana on the work premises, which is using a controlled substance while at work.

Dr. Long's opinion is that Claimant's use of marijuana on December 7, 2015 in violation of AB Electrical, Inc.'s policy was the proximate cause of his injuries. According to Dr. Long, if you are not functioning properly, then accidents happen.

On cross-examination, Dr. Long testified the effects of marijuana last up to eight hours, and Claimant was within that window when the accident occurred. According to Dr. Long, there are some studies indicating the effects of marijuana can last up to 24 hours. Dr. Long does not use the 24 hours. Dr. Long agreed with the statement "marijuana's impairment is reasonably up to five hours post ingestion." According to Dr. Long, the five hours is a conservative number that he uses routinely. Although Dr. Long has been more conservative in other cases in which he said the effects of marijuana reasonably lasted up to five hours post-ingestion, he was being more accurate in this case to say that the effects of marijuana can last up to eight hours post-ingestion.

Employer asserts Claimant has forfeited all benefits and compensation pursuant to $\S 287.120 .6(2)$. In the alternative, Employer asserts it is entitled to a 50 percent reduction in benefits pursuant to $\S 287.120 .6(1). The Claimant contends that the neither \S 287.120 .6(2) nor \S 287.120 .6(1)$ should be applied to reduce his benefits.

Employer/Insurer bears the burden of proving that Claimant forfeited his benefits pursuant to § 287.120.6. "The burden of establishing any affirmative defense is on the employer. ... In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely true than not true." Mo. REV. Stat. § 287.808.

Section 287.120 provides in part:

1. (1) Where the employee fails to obey any rule or policy adopted by the employer relating to a drug-free workplace or the use of alcohol or nonprescribed controlled drugs in the workplace, the compensation and death benefit provided for herein shall be reduced fifty percent if the injury was sustained in conjunction with the use of alcohol or nonprescribed controlled drugs.

(2) If, however, the use of alcohol or nonprescribed controlled drugs in violation of the employer's rule or policy is the proximate cause of the injury, then the benefits or compensation otherwise payable under this chapter for death or disability shall be forfeited.

Mo. Rev. Stat. § 287.120.6.

Based on the foregoing, in order to prove that Claimant forfeited his benefits, Employer/Insurer bears the burden to prove that it is more likely true than not true that: (1) Employer adopted a rule or policy relating to a drug-free workplace or the use of alcohol or nonprescribed controlled drugs in the workplace, (2) Claimant used alcohol or nonprescribed controlled drugs in violation of Employer's rule or policy, and (3) Claimant's use of alcohol or nonprescribed controlled drugs in violation of Employer's rule or policy was the proximate cause of his injury.

Employer/Insurer introduced AB Electrical, Inc.'s Employee Manual, a Receipt \& Acknowledgment of Employee Manual signed by Claimant, AB Electrical, Inc.'s Drug/Alcohol Testing Policy, and a Drug/Alcohol Testing Release. Claimant testified that he had signed the Receipt \& Acknowledgment of Employee Manual, and he admitted he had signed the Drug/Alcohol Testing Release.

AB Electrical, Inc.'s Employee Manual sets forth Employer's drug and alcohol policy as follows:

Drug and alcohol abuse poses a serious threat to the safety and welfare of all employees (not just the user). Specifically, drug and alcohol use lowers productivity, lessens reliability, increases absenteeism, impairs the ability of employees to perform their work, increases the likelihood of accidents, and impairs good judgment. Our policy establishes AB as a drug and alcohol-free workplace. This is in the best interest of our employees, employees of companies doing business with us and our clients.

Claimant testified that he knew that AB Electrical, Inc. had adopted a policy relating to a drug-free workplace. Based on the foregoing evidence, I find that it is more likely to be true than not true that Employer had adopted a rule and policy relating to a drug-free workplace and the use of alcohol or nonprescribed controlled drugs in the workplace.

The next question is whether Claimant used alcohol or nonprescribed controlled drugs in violation of Employer's rule or policy. Employer's drug and alcohol policy further states as follows:

The unlawful manufacture, distribution, dispensation, and use of drugs and/or alcohol are prohibited. It is a violation of AB's work rules, regulations, and accepted practices for any employee to:

- Report to work, work, or attempt to work under the influence of drugs and/or alcohol.

- Use, possess, trade, attempt to sell, or sell drugs and/or drug-related paraphernalia on Company premises - including in employee vehicles.

- Engage in any illegal on or off-the-job drug or alcohol-related activities.

In addition, Employer's drug and alcohol policy defines "under the influence" as follows:

"Under the influence" means having consumed any drug or alcohol as evidenced by behavior, appearance, attendance, performance, and/or having a detectable level - in excess of trace - of alcohol, drugs or controlled substances in the body as determined by urine or other appropriate test.

Employer/Insurer and Claimant introduced the laboratory results from Centerpoint Medical Center. Those laboratory results demonstrate that Claimant had a detectable level - in excess of trace - of THC, the metabolite for marijuana, in his body at 1:27 a.m. on December 8, 2015. In addition, Mr. Mayabb testified he saw Claimant take two hits off of a marijuana pipe at 9:00 a.m. or 10:00 a.m. on December 7, 2015 while at the job site. Based on this evidence, I find it more likely to be true than not true that Claimant used alcohol or nonprescribed controlled

drugs in violation of the rule and policy adopted by Employer relating to a drug-free workplace and the use of alcohol or nonprescribed controlled drugs in the workplace.

Having found that Employer adopted a rule and policy relating to a drug-free workplace and the use of alcohol or nonprescribed controlled drugs in the workplace, and that Claimant used alcohol or nonprescribed controlled drugs in violation of Employer's rule and policy, the next question is whether Claimant's use of alcohol or nonprescribed controlled drugs in violation of Employer's rule or policy was the proximate cause of his injuries. "Proximate cause is such cause as operates to produce a particular consequence without the intervention of an independent or superseding cause." Willeford v. Lester E. Cox Med. Ctr., 3 S.W.3d 872, 877 (Mo. App. 1999). Employer/Insurer has the burden to prove it is more likely to be true than not true that Claimant's use of marijuana in violation of Employer's drug policy operated to produce his fall and subsequent injuries without the intervention of an independent or superseding cause.

Claimant does not remember anything about the day of the accident. He cannot remember one way or another if he smoked marijuana on the day of the accident. Claimant testified he could not have smoked marijuana at work on the day of the accident because he had only smoked cigarettes - and not marijuana - at work prior to that day. However, the fact that Claimant had not smoked marijuana at work prior to December 7, 2015 does not mean that he did not smoke marijuana on that day. As a matter of fact, the fact that Claimant had not smoked marijuana at work prior to December 7, 2015 actually serves to prove a causal connection between his use of marijuana and the accident. That is because neither Claimant nor Mr. Mayabb had slipped or fallen off the scaffold prior to December 7, 2015. Claimant was the only person to fall off the scaffold, and he fell on the same day Mr. Mayabb saw him take two hits off of a marijuana pipe.

Mr. Mayabb's testimony that he saw Claimant take two hits off of a marijuana pipe on December 7, 2015 is unrefuted. Claimant's only response to Mr. Mayabb's testimony is Kayla Jones' testimony that Mr. Mayabb told her that he was coerced to sign the affidavit. However, Mr. Mayabb's deposition took place after he signed the affidavit, and Mr. Mayabb swore under oath at his deposition that no one ever coerced or threatened him. Mr. Mayabb testified he thought Mr. Johnmeyer said he could lose the company if the employees were not completely honest. Mr. Mayabb testified he told the absolute truth, and he testified there is no doubt in his mind that he saw Claimant take two hits off of a marijuana pipe at around 9:00 a.m. or 10:00 a.m. on December 7, 2015. There is no reason to discredit Mr. Mayabb's testimony, especially considering the fact that he and Claimant were friends.

In terms of the toxicologists, Dr. Long's opinions that Claimant used marijuana in violation of Employer's drug policy, and that Claimant's use of marijuana in violation of that policy was the proximate cause of the accident are unrefuted. Mr. Cary's only opinion in this case is that the positive drug test by itself cannot be used to determine whether Claimant was impaired at the time of the accident. That opinion is not inconsistent with Dr. Long's opinions in

this case because Dr. Long does not opine that Claimant was impaired based on the drug screen alone. Rather, Dr. Long's opinions are based on the positive drug test and the fact that Mr. Mayabb saw Claimant smoke marijuana the morning of the accident. Mr. Cary concedes that the fact that a witness saw Claimant take two hits off of a marijuana pipe was "relevant to the facts of the day", but he did not consider that fact in developing his opinion in this case. Mr. Cary did not opine that Claimant did not use marijuana in violation of Employer's drug policy, and he did not opine that Claimant's use of marijuana in violation of that policy was not the proximate cause of his accident. Therefore, Dr. Long's opinions are unrefuted.

Not only does Mr. Cary's opinion not refute Dr. Long's opinions, his deposition testimony actually supports Dr. Long's opinions and the conclusion that Claimant's use of marijuana on the day of the accident was the proximate cause of his injuries. Mr. Cary unequivocally testified that some psychomotor skills, judgment skills and perception skills may be affected more than eight hours after marijuana is ingested. This testimony provides additional support for the conclusion that Claimant's use of marijuana at 9:00 a.m. or 10:00 a.m. on December 7, 2015 affected his psychomotor skills, judgment skills and perception skills at the time of his accident a little after 3:00 p.m. that afternoon. After all, there can be no dispute that those skills are perhaps the most needed skills required to work on a scaffold.

All of this evidence leads to the conclusion that due to his use of marijuana on December 7, 2015, Claimant's psychomotor skills, judgment skills and perception skills, and perhaps other functions necessary to work safely on a scaffold, were impaired at the time of his accident. It is more likely to be true than not true that Claimant's use marijuana in violation of Employer's drug policy was the proximate cause of his injuries. Accordingly, pursuant to § 287.120.6(2), Claimant has forfeited all benefits and compensation he would have been entitled to under the Workers' Compensation Law.

Claimant contends that forfeiture of benefits under $\S 287.120 .6(2)$ does not apply to the cost of his medical treatment. I do not agree. As an initial matter, § 287.140.1, which provides for medical treatment, states: "In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical ... treatment as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury." R.S.Mo. § 287.140.1. Given the reference to "other compensation", the legislature clearly contemplated that medical treatment is another form of compensation under the Workers' Compensation Law.

Consistent with that rudimentary analysis, the Courts and the Commission have long held that the term "compensation" as used in $\S 287.120$ includes the cost of medical treatment. In Martin v. Star Cooler Corp., 484 S.W.2d 32, 36 (Mo. App. 1972), the Court held the term "compensation" as used in $\S 287.120 .4$ included the cost of medical treatment. In Kelso v. Empire Container Corporation, Injury No. 95-087132 (Labor and Industrial Relations Commission, November 4, 1997), the Commission, relying on the Star Cooler case, held "[w]e

see no reason that the term 'compensation' should be defined differently in subsection 6 [of § 287.120] rather than subsection 4 . There is no evidence that the legislature intended the 15 % penalty to punish employers who violate the statute but not employees who do. If the legislature intended for such a result, it clearly would have provided for it." The Commission reiterated its position in Nolan v. Degussa Admixtures, Inc., Injury No. 05-083237 (Labor and Industrial Relations Commission, July 27, 2007), saying "[w]e see no reason why the term 'compensation' should be defined differently in subsection 6 [of § 287.120] versus its definition for purposes of subsection 4."

Claimant seemingly contends that the term "compensation" as used in § 287.120.6(2) carries a different meaning than in § 287.120.6(1). The basis for Claimant's argument is that $\S 287.120 .6(2)$ refers to "the benefits or compensation otherwise payable under this chapter for death or disability ..." whereas $\S 287.120 .6(1)$ refers to "the compensation and death benefit provided for herein". Claimant's argument is that the reference to "death or disability" in $\S 287.120 .6(2)$ means the legislature contemplated that injured employees could only forfeit death or disability benefits and not medical benefits. Claimant's argument is untenable. Just as there is no reason why the term "compensation" should be defined differently in § 287.120.6 than in § 287.120.4, there is no reason why the term should carry a different meaning in $\S 287.120 .6(2)$. Both provisions are intended to penalize an employee for violating an employer's policy against alcohol or drugs. And § 287.120.6(2) is clearly attended to provide for a more serious penalty where an employee's use of alcohol or drugs was the proximate cause of his injury. The legislature obviously did not intend that this more serious penalty would apply to a lesser category of benefits than the partial forfeiture in § 287.120.6(1). As the Commission said in Kelso, if the legislature intended that an employee could never forfeit the cost of their medical expenses, it clearly would have provided for that result.

Accordingly, pursuant to § 287.120.6(2), Claimant has forfeited any benefits he would have been entitled to under the Workers' Compensation Law, including the cost of his medical treatment. The remaining issues are, therefore, moot.

Made by: $\qquad$

Mark Siedlik

Administrative Law Judge

Division of Workers' Compensation