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Rose v. Berry Plastics Corp.

Court of Civil Appeals of Oklahoma, Division No. 4

November 16, 2018

Dillon S. ROSE, Petitioner,
BERRY PLASTICS CORP., Safety National Casualty Corp., and the Workers’ Compensation Commission, Respondents.

          Rehearing Denied: 01/11/2019

          Mandate Issued: 10/16/2019

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         Kathryn Black, Tulsa, Oklahoma, for Petitioner

         H. Lee Endicott, Donald A. Bullard, BULLARD & ASSOCIATES, P.C., Oklahoma City, Oklahoma, for Respondents



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         [¶1] Claimant Dillon S. Rose seeks review of the March 19, 2018, Workers’ Compensation Commission (WCC) order denying him benefits because Claimant tested positive for marijuana following an accident. The WCC’s order reversed the findings of the Administrative Law Judge (ALJ), which had awarded benefits in an order filed September 13, 2017.[1]

         [¶2] Based on our review of the facts and applicable law, we reverse the WCC’s order and reinstate the ALJ’s order.


         [¶3] Claimant’s CC Form 3 was filed April 11, 2017, and alleged that Claimant’s left hand and wrist were crushed in a "guillotine" machine while working as a machine operator for Employer Berry Plastics on April 5, 2017.[2] Employer initially provided medical treatment, but denied the claim was compensable because Claimant tested positive for marijuana and therefore Employer raised the affirmative defense of intoxication.[3]

         [¶4] The matter was heard by an ALJ on August 30, 2017. Both parties stipulated as to jurisdiction, availability of coverage, timeliness of claim, and compensation rate.[4] The ALJ found the fact of the injury was not in dispute. Nor was there any dispute Claimant tested positive for marijuana shortly after the accident. The ALJ found that Claimant admitted to smoking marijuana at 11:00 p.m. the night before the accident, but denied its use was a factor in the accident.[5] His admission was later confirmed by the results of a post-accident drug test which showed Claimant "positive THC & Morphine."[6] ,[7] However, the test merely showed the presence of chemicals in the blood. There were no quantitative measurements reported in the test results.

         [¶5] Claimant’s undisputed testimony was that he left home in the dark between 6:00 and 6:15 in the morning and drove 45 minutes to Employer’s facility.[8] Following his arrival at work at 6:55 a.m., Claimant attended a safety meeting, met with his supervisor, and began his 7 a.m., shift at his machine.[9] Operating his machine, which ran 24 hours a day, requires concentration and precision when Claimant takes over operation of the machine from the worker on the previous shift.[10] After relieving the previous operator on the machine, Claimant operated it without incident until his relief and break at 9:15 a.m.[11] During his break, Claimant said he ate, smoked a cigarette, and talked to other co-workers and a supervisor.[12] None of his supervisors testified, and there is no evidence that any supervisors had remarked that Claimant was having any problems associated with intoxication, according to Claimant’s testimony.[13] Claimant specifically denied being

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under the influence of any alcohol or drug that day.[14] Before returning to his machine following his break, Claimant went to help a co-worker at a different machine, known as a guillotine machine. The co-worker was having difficulty closing a latch on the machine because a piece of plastic, called a flare out, was stuck in the roller. A video of the incident, introduced into evidence, showed Claimant and two of his co-workers attempting to clear the jammed machine.[15] Finally, Claimant took off his gloves and inserted his hand in the machine to extract the plastic and clear the obstruction. At the same time, a co-worker pushed the button to operate the machine, causing the guillotine to operate and crush Claimant’s left arm.[16] The injury took place approximately ten hours after Claimant had smoked marijuana.[17]

         [¶6] Claimant testified he knew it was against company policy to be impaired on Employee’s premises and not wear his safety goggles and gloves.[18] He admitted removing his gloves and safety goggles while working to clear the machine, but denied being impaired when he did so. He acknowledged that putting his hand inside the machine was unsafe, but that he was clear-headed and knew what he was doing.[19] Claimant testified that operating the machine requires two buttons to be pushed simultaneously, insuring that a single operator cannot place his hand inside the machine and operate it at the same time.[20] The ALJ found that, had the co-worker not operated the machine while Claimant’s hand was inside, the accident could not have occurred.[21] Under cross-examination, Claimant was asked:

Q Your hand was still in the machine when he pushed the buttons, correct?
A Yes, sir.
Q And you knew that was not ... good safety, correct?
A Yes, sir.
Q And so why did you do it, were you not thinking clearly ?
A No, sir . That I could get the flare outs out of the way and lock the machine into place . I honestly did not think the machine would engage with where the safety bar was.[22] (Emphasis added.)

         [¶7] At the conclusion of his cross-examination, Claimant was asked:

Q All right. And just to summarize, you are standing in a place where you should not have been standing while he was starting the machine. You had your hand under a machine while the machine was trying to be started. You didn’t have your safety glasses on. You didn’t have your gloves on. Were you--Again, I’m asking you again, were you thinking clearly that day?
A Yes, sir .[23] (Emphasis added.)

         [¶8] On redirect, Claimant again stated he was not under the influence of anything, his head was clear, and he knew what he was doing.[24]

         [¶9] The ALJ then heard testimony from Employer’s production manager about the proper safety protocols that were breached by the Claimant. The manager did not witness the accident. The manager opined that Claimant’s placement of his hands in the machine was "a bad decision."[25] The witness went on to state that he had not spoken with Claimant before the accident and denied any knowledge that Claimant was intoxicated.[26] The manager stated Claimant had never

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been written up for any safety violations prior to the ...

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