DILLON S. ROSE, Petitioner,
BERRY PLASTICS CORP., SAFETY NATIONAL CASUALTY CORP., and THE WORKERS' COMPENSATION COMMISSION, Respondents.
Mandate Issued: 10/16/2019
PROCEEDING TO REVIEW AN ORDER OF THE WORKERS'
COMPENSATION COMMISSION HONORABLE MICHAEL T. EGAN,
ADMINISTRATIVE LAW JUDGE
Kathryn Black, Tulsa, Oklahoma, for Petitioner
Endicott, Donald A. Bullard, BULLARD & ASSOCIATES, P.C.,
Oklahoma City, Oklahoma, for Respondents
L. GOODMAN, JUDGE
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.
Based on our review of the facts and applicable law, we
reverse the WCC's order and reinstate the ALJ's
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.  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.
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.
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.  His admission was later confirmed by
the results of a post-accident drug test which showed
Claimant "positive THC & Morphine."  , However,
the test merely showed the presence of chemicals in the
blood. There were no quantitative measurements reported in
the test results.
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.  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.  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.  After relieving the previous
operator on the machine, Claimant operated it without
incident until his relief and break at 9:15 a.m.
 During his break, Claimant said he
ate, smoked a cigarette, and talked to other co-workers and a
supervisor.  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.
 Claimant specifically denied being
under the influence of any alcohol or drug that day.
 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.  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.  The injury took place approximately
ten hours after Claimant had smoked marijuana. 
Claimant testified he knew it was against company policy to
be impaired on Employee's premises and not wear his
safety goggles and gloves.  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.  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.  The ALJ
found that, had the co-worker not operated the machine while
Claimant's hand was inside, the accident could not have
occurred.  Under cross-examination, Claimant
Q Your hand was still in the machine when he pushed the
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
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.  (Emphasis added.)
At the conclusion of his cross-examination, Claimant was
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.  (Emphasis added.)
On redirect, Claimant again stated he was not under the
influence of anything, his head was clear, and he knew what
he was doing. 
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."  The
witness went on to state that he had not spoken with Claimant
before the accident and denied any knowledge that Claimant
was intoxicated.  The manager stated Claimant had
never been written up for any safety violations prior to the
The ALJ entered an order which concluded:
The Commission believes that while the Claimant and his two
co-workers exercised extremely poor judgment in the way they
tried to fix the machine, there is no evidence that the
Claimant's use of marijuana the night before this
accident caused the accident. It is likely that if the
Claimant were intoxicated it would have been noted at the
safety meeting that morning. The accident was caused
because the Claimant had his hand where it should not have
been and his co-worker pushed two buttons which should not
have pushed [ sic ] which caused the machine to
slam down on the Claimant's hand.  (Emphasis added.)
ordered Employer to continue to provide medical treatment and
Employer sought review  before the WCC, which issued an
order filed March 19, 2018, reversing the ALJ's order.
The WCC's order will be discussed in detail below.
Any party feeling aggrieved by the judgment, decision, or
award made by the administrative law judge may, within ten
(10) days of issuance, appeal to the Workers'
Compensation Commission. After hearing arguments, the
Commission may reverse or modify the decision only if it
determines that the decision was against the clear weight of
the evidence or contrary to law.... Any judgment of the
Commission which reverses a decision of the administrative
law judge shall contain specific findings relating to the
C. The Supreme Court may modify, reverse, remand for
rehearing, or set aside the judgment or award only if it was:
1. In violation of constitutional provisions;
2. In excess of the statutory authority or jurisdiction of
3. Made on unlawful procedure;
4. Affected by other error of law;
5. Clearly erroneous in view of the reliable, material,
probative and substantial competent evidence;
6. Arbitrary or capricious;
7. Procured by fraud; ...