The employee was a fiberglass insulation installer for Installed Building Products Inc. for 15 years. While driving back to the shop from a jobsite, the employee crashed the company truck into an electric pole. He sustained numerous injuries. A rapid drug test in the hospital came back positive for the presence of cocaine metabolites. The employer and insurer denied liability for the injuries citing that the collision and injuries were due to intoxication.
Dr. Topliff performed an IME at the request of the employer and insurer and opined that the motor vehicle accident were likely due, at least in part, to the employee’s use of cocaine and “cocaine washout” leading to fatigue and likely causing the accident.
The employee obtained a report from Dr. Van Berkom who opined that the drug test results proved only use of cocaine some days prior, not intoxication at the time of the accident.
The employee filed a Claim Petition and his claim was heard at hearing where the employee and a coworker testified that the employee’s demeanor was “normal” in the two days prior to the accident. The employee testified that he had used cocaine three days before the accident but was not experiencing any effects at the time of the accident. The compensation judge found the employee credible and adopted the opinion of Dr. Van Berkom and awarded the employee benefits.
The employer and insurer appealed. The W.C.C.A. confirmed that the employer and insurer have the burden of proving intoxication and found that they did not meet that burden. There was no proof that the employee was intoxicated at the time of the accident.
The employer and insurer also challenged Dr. Van Berkom’s qualifications as he is a veterinarian, not a medical doctor. The W.C.C.A. held that Dr. Van Berkom is qualified and had adequate foundation as he also has a master’s degree in forensic toxicology, which is sufficient.
The employer and insurer also argued that use of cocaine violates the employer’s drug policy which disqualifies the employee from receiving TTD. The W.C.C.A. rejected that argument – a misconduct defense requires “a direct relationship between the prohibited conduct and the employee’s injury” and that relationship does not exist here. The compensation judge’s decision is thus affirmed.