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Johnson v. R.C. Fabricators, Inc., C.A. No. S15A-05-001, Stokes, J. (Del. Super. Dec. 22, 2015).

The Superior Court affirms an IAB decision holding that an employee forfeited his right to benefits under 19 Del. C. § 2353(b) because his own intoxication was the cause of his injury at work.

On October 30, 2013, the claimant, Roger Johnson, was working on a construction project when he fell from a rafter and suffered various injuries.  The employer defended on the basis that Mr. Johnson was impaired by cocaine and marijuana at the time of the fall and that his impairment was the cause of his work injury.

At the hearing, the claimant called co-worker witnesses who testified at the hearing that they were not aware of the claimant using drugs the night before or the day of the accident, that claimant did not appear intoxicated the morning of the accident and that the weather and/or a rebar hook slipping were the reasons that the claimant fell.  However, the claimant, himself, testified that he had smoked marijuana with his witnesses and used cocaine the night before the accident.  The employer’s expert, Dr. Hameli, testified that, based on the drug test results, the claimant consumed cocaine within two to four hours of the accident and that his impairment substantially contributed to his injury.  The claimant did not present expert medical testimony. The Board agreed with Dr. Hameli’s testimony and found that the claimant’s own witnesses were not credible.  The petition was denied.

On appeal, the claimant argued (1) that Dr. Hameli’s testimony was flawed, circumstantial, refuted by lay witness testimony and should be disregarded and (2) that the Board should have given more weight to testimony that external force(s) caused the fall and injuries.

The Court concluded there was substantial evidence to support the Board’s determination that there was a 2353(b) forfeiture because the employer carried its burden to prove (1) that the employee was intoxicated and (2) that the intoxication was a “but for” cause of the injury.  First, the Court noted that Dr. Hameli was qualified as an expert to render an opinion regarding the claimant’s intoxication and its effects (due to training and experience gleaned from examining 60,000 cases and 12,000 autopsies).  Next, the Court deferred to the Board’s credibility determinations regarding the claimant’s witnesses, emphasizing the inconsistencies in their testimony.  The Court determined that Dr. Hameli’s testimony constituted substantial evidence to support the Board’s decision that the accident would not have occurred but for the employee’s intoxication.  The decision was affirmed. 

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