           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eric Coley,                                 :
                      Petitioner            :
                                            :
              v.                            : No. 2058 C.D. 2016
                                            : Submitted: April 6, 2018
Workers’ Compensation Appeal                :
Board (Illusionz of Greenville,             :
LLC and Uninsured Employers’                :
Guarantee Fund),                            :
                   Respondents              :


BEFORE:       HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE CHRISTINE FIZZANO CANNON, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                     FILED: May 3, 2018

              Eric Coley (Claimant) petitions for review of the Workers’
Compensation Appeal Board’s (Board) order that reversed the Workers’
Compensation Judge’s (WCJ) decision granting benefits to Claimant pursuant to
Section 301(a) of the Workers’ Compensation Act (Act)1 because his injuries
occurred as a result of his intoxication.2

       1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 431. Section 301(a) of the Act
provides, in pertinent part, “In cases where the injury or death is caused by intoxication, no
compensation shall be paid if the injury or death would not have occurred but for the employe’s
intoxication, but the burden of proof of such fact shall be upon the employer.” 77 P.S. § 431.

       2
         Claimant also appealed to the Board, contending that: (1) there was no credible
evidence that he was intoxicated; (2) his conduct did not give rise to the confrontation; (3) he
(Footnote continued on next page…)
                                               I.
              Claimant was employed by Illusionz of Greenville, LLC (Employer)
as a club disk jockey (DJ). On April 19, 2013, he filed a claim petition alleging
that on March 16, 2013, he suffered work-related injuries in the nature of a broken
right ankle and broken right fibula as the result of a slip and fall following a
disagreement with a fellow employee. Claimant sought workers’ compensation
benefits beginning March 16, 2013, as well as the payment of medical expenses
resulting from the incident.            Because Employer did not have workers’
compensation insurance in effect on the date of injury, the Uninsured Employers’
Guarantee Fund (Fund) filed an Answer denying all material averments and
alleging that Claimant was precluded from receiving benefits because his injuries
were the result of his intoxication.


                                              A.
              Before the WCJ, Claimant testified that he worked for Employer as a
DJ Wednesdays through Fridays from 10:00 p.m. until 2:00 a.m. and that his duties
were maintaining the computer, playing music, and cleaning at the end of the
night. Although only paid until 2:00 a.m., Claimant was required to clean the club
at the end of the night with other staff. This took between one-half hour and one-
hour-and-a-half.



(continued…)

was not able to return to full duty as of July 23, 2013; and (4) he was entitled to unreasonable
contest fees. The Board dismissed Claimant’s appeal as untimely and Claimant does not
challenge that determination on appeal to this Court.




                                               2
            Claimant testified that on March 16, 2013, between 2:30 a.m. and
3:00 a.m., he complained to both Employer’s owner and manager that the bouncers
were not cleaning properly. That led to a verbal and physical altercation with one
of the bouncers, who pushed him twice. While attempting to turn and walk away
from the bouncer, Claimant stated that he slipped and fell on the wet dance floor
resulting in his broken right ankle and broken right fibula, for which he was taken
to the hospital by ambulance. Claimant was certain that the dance floor was wet
because he had mopped it.


            Regarding his alleged intoxication, Claimant testified that over his
four-hour shift, he had three to four “Jack and Cokes,” each of which had one shot
of Jack Daniels in a 16-ounce glass with no ice. He denied that he was intoxicated
when he was injured.


            The records from the ambulance service indicate that Claimant “was
involved in an altercation with another bouncer at the establishment. During the
altercation, [he] fell and twisted his right ankle. . . . [Claimant] admitted to
consuming five to six ‘Jack in Cokes’ prior to the event.” (Certified Record (C.R.)
Item No. 43, C-8-2 Itemized Records of Life Force.)         The trip sheet further
indicates, “[Claimant] was alert and oriented, [he] was intoxicated however he still
was sound [of] mind and answered all questions appropriately.” (Id.)


            UPMC Horizon Emergency Room records indicate under the heading
“context” that Claimant had a fall and a twist “[w]hile in a bar fight.” (C.R. Item




                                         3
No. 28, C-09 Medical records of UPMC-Horizon.) Under “Clinical Impression,” it
states “ETOH Intoxication.” (Id.)


             The transcript from the 911 call that was admitted into evidence states
that the incident took place because of a bar fight and all parties had been drinking.
A deposition was taken of Officer Wesley P. Carson (Officer Carson), who
testified that he and the other responding officers on the scene were told by staff
that Claimant became enraged and was heavily drinking. When confronted by the
officers, Claimant would not make a statement.


             Claimant also offered the deposition transcript of Stuart D. Anderson,
M.D. (Dr. Anderson). As pertinent, Dr. Anderson testified that Claimant suffered
a fracture/dislocation of his right ankle as well as his proximal fibula. He opined
that within a reasonable degree of medical certainty, Claimant’s injuries were
caused by “[t]he altercation while he was at work.” (C.R. Item No. 37, C-18
Deposition Testimony of Stuart Anderson, M.D. at 11.)


                                         B.
             Employer presented the testimony of Shawn Knauf (Knauf), who
testified that he is the sole owner, operator and president of Employer and that on
March 16, 2013, Employer employed two bouncers, a DJ, and three bartenders at
the bar. While Claimant was permitted to leave at 2:00 a.m., Knauf claimed that
Claimant remained at the site because he was waiting for his girlfriend to finish her
shift and cleaning.




                                          4
             As to the verbal and physical altercation between Claimant and the
bouncer, Knauf stated that took place when Claimant came out from the DJ booth
yelling about the bouncers not doing their jobs, after which one of the bouncers
confronted him.     Knauf stated that Claimant was highly intoxicated, very
belligerent and vulgar, yelling and screaming and swearing at everyone, and stating
that the bouncers were not doing their jobs.


             Knauf stated that he saw Claimant start drinking heavily over the
course of several months before the incident and that he had witnessed the
bartenders pouring double shots for Claimant that night so that Claimant’s drinks
were about two-and-one-half shots in a 16-ounce glass. Notwithstanding, he did
not suspect that Claimant was overly intoxicated on the night of the incident until
he began screaming, yelling and acting belligerently.


             Knauf further testified that he saw Claimant and the bouncer lock up
and saw Claimant going to the floor with the bouncer almost landing on top of
him. He denied that the dance floor was wet because nobody had started cleaning
yet. Knauf discharged Claimant and the bouncer that evening.


             Kaitlyn Frederick (Frederick), a bartender who was dating Claimant at
the time of the incident, testified that she was behind the bar cleaning when she
heard a verbal exchange between Claimant and the bouncer, but she did not see
how Claimant was injured. She stated that, to her knowledge, there had not been
any issues during the evening between Claimant and the bouncer and there were no
issues between them on any other occasion. Regarding Claimant’s intoxication,



                                         5
Frederick testified that she served Claimant two “Jack and Cokes” on the night of
the injury, with one shot of Jack Daniels in each. She explained that bartenders
and bouncers are not allowed to consume alcohol while working, but that the DJ –
i.e., Claimant – was allowed to do so and he normally had about three to four
drinks a night. Based on her observations, Frederick testified that neither Claimant
nor the bouncer was intoxicated.


             Jessica Ohl (Ohl), a bartender for Employer, testified that she had
known Claimant for about two years. She stated that Claimant is normally a quiet
person but gets belligerent every time he gets intoxicated. She testified that on the
night in question, she saw Claimant at the bar three times getting double “Jack and
Cokes” from Jessica Peterson (Peterson), another bartender, but acknowledged that
she did not see Claimant consume the drinks. Ohl stated that those drinks had two
shots of Jack Daniels, but the staff usually top the drinks so each drink would
probably contain about three shots. She testified that she observed the verbal and
physical altercation between Claimant and the bouncer. The two were grabbing
and pushing each other and they fell to the ground, but no punches were thrown.
Claimant was already saying his ankle was hurt before falling to the floor, and
once he did, the bouncer fell on top of him. Ohl stated that the dance floor could
not have been wet at the time of the incident because mopping could not have been
done yet. She also did not see Claimant mopping the floor at any time during the
night.


             Peterson testified that she was Employer’s manager and helped with
bookkeeping, but was working as a bartender on March 16, 2013. She testified



                                         6
that on the night in question, she served Claimant one to two “Jack and Cokes”
consisting of one to one-and-a-half shots of Jack Daniels in a 16-ounce glass.
Peterson testified that Claimant did not like the taste of the alcohol and requested a
new drink, a bigger glass, or that the drink be split into two cups if the staff over-
poured his drinks. She stated that he normally did not get ice in his drinks. She
also saw Frederick serve drinks to Claimant, but could not recall how many.


              Peterson did not observe any prior difficulties between Claimant and
the bouncer. She stated, at first, that Claimant was just yelling in general that the
bouncers were not doing their duties but that soon thereafter, Claimant and the
bouncer got into a verbal and physical altercation. Peterson did not see anything
after that point.


              A Pennsylvania Liquor Control Board Incident Document Form
signed by Peterson states that Claimant and the bouncer “started to argue . . . [and]
proceeded to fight after hours. [The bouncer] then carried [Claimant] . . . where
[Claimant] fell and broke his ankle.” (C.R. Item No. 41.)


                                         II.
              On August 3, 2015, the WCJ issued a Decision and Order granting
Claimant’s petition. In his findings of fact, made in narrative form, the WCJ found
as follows:

              As reviewed above, the essence of the developments
              giving rise to this claim is fairly straightforward. The
              [C]laimant . . . in the early morning hours of March 16,
              2013, became involved in an argument with a co-worker


                                          7
which escalated into a physical confrontation, during the
course of which he sustained the injuries described by
him and reviewed in the medical evidence of record.
Much of what occurred is essentially undisputed by any
of the witnesses who have testified throughout the course
of this litigation. . . . The credible testimony – that
which has been accepted – supports a determination
that [Claimant’s] conduct gave rise to the resulting
confrontation, and that he was significantly
intoxicated at the time of this development. All of the
testimony and evidence supportive of this determination
has been deemed credible, and accepted, and any
testimony or evidence adverse thereto has been deemed
less credible, and dismissed as such. The question then
becomes: if he started the fight, and was significantly
intoxicated at the time he did so, how could his Claim
Petition possibly be granted? The answer follows.

                          ***

The [E]mployer knowingly, and willingly, provided the
fuel which ignited the blaze – and now wishes to disavow
itself of legal responsibility for the resulting inferno.
This is precisely why virtually all employers discourage
– if not strictly prohibit – the consumption of intoxicants
while an employee is “on duty,” or on the job. The law
holds a commercial liquor licensee responsible for the
harmful conduct of intoxicated patrons it has served, and
must likewise hold it responsible for the harmful conduct
of intoxicated employees which it has served, as well.
Conversely, the [E]mployer, through counsel, has argued
that the [C]laimant became excessively intoxicated of his
own volition – and started a fight. True enough. And
hardly a novel occurrence in the annals of youthful
conduct. But the proximate cause – the legally
sufficient cause, if you will, was that of the [E]mployer
in allowing for what could hardly have been a wholly
unexpected development given its provision of
intoxicating beverages to the [C]laimant throughout
the course of the evening.




                            8
(C.R. Item No. 5, Decision of Judge Benedict at 10-11 (emphasis added).)


               The Fund appealed to the Board, which reversed the WCJ. It found
that while Employer permitted Claimant to drink at work, there was no exception
to Section 301(a)’s mandate that no compensation shall be paid if the injury would
not have occurred but for the employee’s intoxication. Claimant then filed this
petition for review.3


                                               III.
               Not disputing the Board’s interpretation of Section 301(a) of the Act,
Claimant contends that the Fund did not meet its burden of establishing that his
injuries were the result of his intoxication.4 He contends that the WCJ only found
his alleged intoxication to be the cause of the fight, not the cause of his injuries,
because the WCJ made no specific finding that his injuries would not have
occurred “but for” his purported intoxication.




       3
         Our scope of review of the Board’s decision is limited to determining whether necessary
findings of fact are supported by substantial evidence, whether constitutional rights were violated
or whether an error of law was committed. Repash v. Workers’ Compensation Appeal Board
(City of Philadelphia), 961 A.2d 227 (Pa. Cmwlth. 2008). Credibility determinations are within
the exclusive province of the WCJ and findings of fact may only be overturned if they are
arbitrary or capricious. Lehigh County Vo-Tech School v. Workmen’s Compensation Appeal
Board (Wolfe), 652 A.2d 797, 800 (Pa. 1995).

       4
         Claimant also contends that the Fund lacks standing in this matter. However, that
contention is waived because Claimant failed to raise the issue before the WCJ and the Board.
See Mearion v. Workers’ Compensation Appeal Board (Franklin Smelting & Refining
Company), 703 A.2d 1080 (Pa. Cmwlth. 1997).




                                                9
            The issue of whether a claimant is precluded from receiving
compensation due to his intoxication must be raised by an employer as an
affirmative defense. Mahon v. Workers’ Compensation Appeal Board (Expert
Window Cleaning & State Workers’ Insurance Fund), 835 A.2d 420, 428-29 (Pa.
Cmwlth. 2003). To meet this burden, an employer must prove that the employee
was intoxicated, and “that intoxication was the cause in fact of an injury . . .
meaning that the harmful result would not have come about but for the negligent
conduct.” Thomas Lindstrom Co., Inc. v. Workers’ Compensation Appeal Board
(Braun), 992 A.2d 961, 967 (Pa. Cmwlth. 2010) (citations omitted). It is the
employer’s “sole burden [] to convince the fact finder, by competent and
substantial evidence that Claimant would not have fallen and sustained his injuries
had he not been intoxicated.” Mahon, 835 A.2d at 429.

            [W]e have repeatedly held that when delivering a
            causation opinion in a workers’ compensation case, a
            doctor or medical expert is not required to use magic
            words such as “substantial contributing factor,”
            “materially contributed,” or in this case, “cause in fact.”
            Yanish v. Workers’ Compensation Appeal Board
            (Bethlehem Mines Corp.), [] 507 A.2d 1302, 1303 ([Pa.
            Cmwlth.] 1986) (citing Workmen’s Compensation
            Appeal Board v. Bowen, [] 364 A.2d 1387 ([Pa. Cmwlth.]
            1976)). Rather, “[i]t is only necessary that the doctor’s
            testimony permit a valid inference that such causation
            was present.” Yanish, 507 A.2d at 1303-04. We
            certainly did not intend to require the use of “magic
            words” when issuing our opinion in Mahon, as we stated
            that an employer’s “sole burden was to convince the fact
            finder, by competent and substantial evidence that
            [c]laimant would not have fallen and sustained his
            injuries had he not been intoxicated.” Mahon, 835 A.2d
            at 429. We made it clear that it was up to the fact finder
            to infer from the evidence as a whole whether a
            claimant’s intoxication caused his injury.


                                        10
Thomas Lindstrom Co., Inc., 992 A.2d at 967. The test is two-fold then: the
employer must establish that the claimant was intoxicated, and “but for” that
intoxication, the claimant would have not sustained his or her injuries.


             Because “intoxication” is not defined in the Act, we must construe the
word according to its “common and approved usage.”                1 Pa. C.S. § 1903.
Although not in the context of Section 301(a) of the Act, our Supreme Court has
interpreted the word “intoxication” to be:

             a non-technical word which Webster’s Dictionary
             (unabridged 2nd ed. 1976) defines as “a making or
             becoming drunk.” “Drunk” is defined by Webster’s
             Dictionary as “overwhelmed or overpowered by
             alcoholic liquor to the point of losing control over one’s
             faculties.”    []   Drinking and intoxication are not
             synonymous terms; therefore a jury instruction on
             intoxication is not warranted because evidence of
             drinking is introduced at trial. It is the intention of the
             legislature that a defendant be overwhelmed or
             overpowered by alcoholic liquor to the point of losing
             his or her faculties or sensibilities before an
             intoxication instruction be given.


Commonwealth v. Reiff, 413 A.2d 672, 674 (Pa. 1980) (emphasis added).


             To make out the first prong, the employer must supply evidence
demonstrating that the claimant was “overwhelmed or overpowered by alcoholic
liquor to the point of losing his or her faculties or sensibilities . . . .” Id. Absent a
blood or breath test, an employer can establish a claimant’s intoxication by
offering lay testimony as to the claimant’s actions and behavior, his or her physical



                                           11
appearance, and other markers, such as slurred speech, that exhibit intoxication.5
Generally, the weight to be assigned these various types of evidence presents a
question for the fact-finder, who may rely on his or her experience and common
sense. See, e.g., Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009).


               In this case, while the WCJ found that Claimant caused the
confrontation, he made no findings on how he arrived at his determination that
Claimant was “intoxicated” other than the fact that he was drinking and got in a
fight. While there was testimony that Claimant had three or four drinks over the
course of four hours, there was conflicting testimony of how much alcohol was in
each of those drinks, as well as conflicting testimony and evidence as to the effect
of his alcohol consumption. The testimony and evidence also establish that up
until the point of Claimant’s outburst and resulting “bar fight,” no one suspected
that Claimant was intoxicated. Again, even the ambulance service noted that
“[Claimant] was alert and oriented, [he] was intoxicated however he still was

      5
          As our Superior Court has noted in other contexts:

               Intoxication is a matter of common knowledge, and opinions given
               by lay people are permissible on the issue. [Commonwealth v.
               Reynolds, 389 A.2d 1113 (Pa. Super. 1978).] However, the lay
               witness must have sufficient facts on which to base his opinion
               before he can express an opinion on another’s intoxication.
               [Commonwealth v. Hughes, 389 A.2d 1081 (Pa. 1978). See also
               Commonwealth v. Summers, 410 A.2d 336 (Pa. Super. 1979)]
               (court concludes witness’ observations of the way the person
               looked and the way he was walking provided sufficient factual
               basis for witness to conclude a person was intoxicated). The court
               also looks to the witness’ personal knowledge and observation.
               [Commonwealth v. Davenport, 386 A.2d 543 (Pa. Super. 1978).]

Commonwealth v. Womack, 453 A.2d 642, 648 (Pa. Super. 1982).



                                               12
sound [of] mind and answered all questions appropriately.” (C.R. Item No. 43,
C-8-2 Itemized Records of Life Force (emphasis added).)


             As to the second prong, even if Claimant was intoxicated, the WCJ
made no findings as to whether his intoxication was the but-for cause of his
injuries. As the various testimonies demonstrate, there is a clear conflict as to why
or how Claimant fell. Claimant states that he slipped and fell on a wet dance floor
while trying to avoid an altercation. Knauf and Ohl, however, state that the dance
floor was not wet and that he fell as a result of the bar fight. There is also
conflicting testimony as to whether Claimant’s injury occurred before he fell,
whether he fell alone or with the bouncer, or whether he fell after being carried by
the bouncer. Given such conflicting testimony, the WCJ had to explain how he
arrived at his conclusion that “but for” Claimant’s intoxication he would not have
been injured.


             Accordingly, for the foregoing reasons, we vacate the Board’s order
and remand this matter to the Board.



                                       ________________________________
                                       DAN PELLEGRINI, Senior Judge




                                         13
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eric Coley,                                :
                    Petitioner             :
                                           :
              v.                           : No. 2058 C.D. 2016
                                           :
Workers’ Compensation Appeal               :
Board (Illusionz of Greenville,            :
LLC and Uninsured Employers’               :
Guarantee Fund),                           :
                   Respondents             :




                                     ORDER


              AND NOW, this 3rd day of May, 2018, the order of the Workers’
Compensation Appeal Board (Board) is vacated, and this matter is remanded to the
Board for proceedings consistent with this opinion.


              Jurisdiction relinquished.



                                           ________________________________
                                           DAN PELLEGRINI, Senior Judge
