                                                                                              FILED
                                                                                            Jan 16, 2020
                                                                                           09:30 AM(CT)
                                                                                        TENNESSEE COURT OF
                                                                                       WORKERS' COMPENSATION
                                                                                              CLAIMS



             TENNESSEE BUREAU OF WORKERS' COMPENSATION
            IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                             AT NASHVILLE

JUVENAL De La ROSA,                                )    Docket No.: 2019-06-1836
         Employee,                                 )
v.                                                 )
                                                   )
MAURICIO LOPEZ CORONADO                            )    State File No.: 93809-2019
         Employer,                                 )
And                                                )
                                                   )
LIBERTY MUT. INS. CORP.,                           )    Judge Robert Durham
         Insurer.                                  )



       EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS


        The Court conducted an expedited hearing on January 7, 20 19, to determine
whether Mr. De La Rosa is likely to prove that his injuries from falling off a ladder are
compensable, considering Mr. Lopez-Coronado's intoxication defense. The Court holds
that, despite his intoxication, Mr. De La Rosa is entitled to medical benefits because the
evidence was insufficient to show that intoxication proximately caused the accident.
However, Mr. De La Rosa did not establish a right to temporary disability benefits. 1

                                         History of Claim

        Mr. Lopez-Coronado hired Mr. De La Rosa, his wife's cousin, to work as a framer
for his construction company at $18.00 per hour. Mr. De La Rosa testified he worked
fifty-five hours a week. Mr. Lopez-Coronado disputed this contention, stating that work
hours varied greatly throughout the year. Neither party provided a wage statement.

      Mr. Lopez-Coronado testified he repeatedly saw Mr. De La Rosa drinking alcohol
while at work and admonished him to stop; however, his company is not a Tennessee
Drug-Free Workplace. Mr. De La Rosa admitted receiving warnings against drinking
1
  The parties stipulated that Mr. Lopez-Coronado employed Mr. De La Rosa who fractured his left wrist,
right scapula and several ribs when he fell at work, and the emergency care and surgery he received was
reasonable and necessary.

                                                   1
because he had a habit of doing so on the job.

       At 6 a.m. on August 19, 2019, Mr. De La Rosa got on the van going to work with
a twenty-four ounce can of beer in his hand. He testified that he drank two twelve ounce
beers for lunch around noon. He denied drinking any more beer that day.

       Jesus Lopez-Ochoa and Jose Ochoa, Mr. De La Rosa's crewmates, told a different
story. They testified he purchased two or three "big cans" of beer on the way to the job-
site and consumed them that morning. For lunch, he had two more "big ones" and one
medium can. When they refused to stop on the way back to work from lunch so Mr. De
La Rosa could buy more beer, he called some friends who brought him two more large
beers, which he drank that afternoon. Mr. Ochoa, the site supervisor, stated that Mr. De
La Rosa drank beer all day long, like "he would a Coke." He and other crew members
told Mr. De La Rosa to stop drinking, but he ignored them.

       As to the effects of his alcohol consumption, Mr. De La Rosa testified that he was
"feeling well" after lunch, and the beer did not impede his work performance, which
included using a power saw and repeatedly climbing up and down a ladder from the
ground to the second floor. Mr. Ochoa and Mr. Lopez-Ochoa stated that Mr. De La Rosa
did not appear unusually drunk that day, but they were used to seeing him in a drunken
state all the time. Nevertheless, he did not perform his duties in an obviously unsafe
manner, and if he had, Mr. Ochoa stated he would have stopped him.

       Mr. De La Rosa testified that around 4:30p.m. that day, he began descending a
ladder that just reached to the second floor. This required him to crawl backwards to the
ladder before placing his right foot on the rung. He also stated that some wood leaned
against the ladder and was in the way. After he stepped down with his right foot, he
brought his left foot down to join it but was unable to do so because he did not leave
enough space on the rung. This caused him to slip and fall fourteen feet to the ground
below. No one else saw him slip from the ladder.

      Mr. De La Rosa was taken to the emergency room. The records state that during
neurologic testing, Mr. De La Rosa was alert and oriented with normal speech and
appropriate responses to questioning. He was then transferred to another hospital for
emergency surgery on his left wrist. Neither hospital performed a drug test.

       According to Mr. De La Rosa, he did not receive any additional treatment
following his release from the hospital, and Mr. Lopez-Coronado did not provide him
with a panel of physicians. He did not provide any evidence regarding the extent or
length of his disability or his current work status.




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                        Findings of Fact and Conclusions of Law

      Mr. De La Rosa must present sufficient evidence establishing that he is likely to
prove at trial that he is entitled to workers' compensation benefits. See Tenn. Code Ann.
§ 50-6-239(d)(1)(2019). Mr. Lopez-Coronado may present evidence of an affirmative
defense, such as intoxication, to refute that entitlement, but the ultimate burden of proof
remains with Mr. De La Rosa. See Burnett v. Builders Transp., 2018 TN Wrk. Comp.
App. Bd. LEXIS 5 at *8, 9 (Feb. 8, 2018).

       Here, the parties stipulated that Mr. De La Rosa sustained an injury ansmg
primarily out of and in the course and scope of his employment. However, Mr. Lopez-
Coronado contended that his intoxication defense under Tennessee Code Annotated
section 50-6-110(a)(3) makes it unlikely that Mr. De La Rosa will succeed at trial.

        Mr. Lopez-Coronado conceded that his business was not a Tennessee Drug-Free
Workplace. Therefore, to defeat Mr. De La Rosa's claim, he must establish that: (1) Mr.
De La Rosa was intoxicated at the time of his injury; and (2) the intoxication proximately
caused the injury. See Bowlin v. Servall, LLC, 2018 TN Wrk. Comp. App. Bd., LEXIS 6
at * 12 (February 8, 20 18). The Court will consider each element in turn.

        In many, if not most, claims involving the intoxication defense, employers
establish intoxication through scientific tests proving blood alcohol content. However,
circumstantial evidence, if sufficient and reliable, may also prove intoxication. In Dobbs
v. Liberty Mut. Ins. Co., 811 S.W.2d 75, 77 (Tenn. 1991), as here, a carpenter fell from
the second floor to the ground. The carpenter admitted to drinking a substantial amount
of alcohol the night before and going home because of a hangover. He came back to work
that afternoon after drinking a beer and had a strong odor of alcohol about his person. He
then lost his balance and fell for no apparent reason other than intoxication. The Supreme
Court found there was sufficient evidence to establish the employee's intoxication even
in the absence of a blood alcohol test. !d.

       Similarly, the Court finds here that Mr. Lopez-Coronado provided sufficient
circumstantial evidence to establish Mr. De La Rosa's intoxication at the time of his fall.
The Court considers Mr. Lopez-Ochoa and Mr. Ochoa to be more credible as to Mr. De
La Rosa's alcohol consumption that day. Both testified that they watched Mr. De La
Rosa steadily drink a substantial amount of beer throughout the day. Similar to the
Workers' Compensation Panel in Littrell v. Lawrence County Advocate, 1998 TN. Sp.
Wrk. Comp. Panel, LEXIS 557 at *18 (Oct. 18, 1998), the Court finds it would "strain a
reasonable concept" to find that Mr. De La Rosa was not intoxicated at the time he fell.

      However, it is not enough to prove intoxication; Mr. Lopez-Coronado must also
have sufficient proof that intoxication proximately caused Mr. De La Rosa's injuries.
"Proximate cause" does not mean the sole cause, but it must be more than a "remote or

                                            3
contributing cause." Overall v. Southern Subaru Star, Inc., 545 S.W.2d 1, 4 (Tenn. 1976).
In this case, the Court holds that the evidence presented was not enough for Mr. Lopez-
Coronado to establish that intoxication was the proximate cause of Mr. De La Rosa's
lllJUry.

       Mr. De La Rosa testified that he "felt well" after lunch and was able to perform his
job effectively. Mr. Ochoa and Mr. Lopez-Ochoa agreed that Mr. De La Rosa did not
perform his job in an obviously unsafe manner, and the job involved potentially
dangerous tasks such as using a power saw and repeatedly climbing up and down a tall
ladder. They testified Mr. De La Rosa appeared drunk all the time, and they noted
nothing unusual about his behavior that day. Although they warned him about drinking
during work, Mr. Ochoa continued to allow him to perform his duties. Additionally, the
medical records do not mention intoxication, but instead indicate that Mr. De La Rosa
was alert and oriented.

       Finally, and most significant to the Court, the record contains no expert opinions
as to how a chronic alcohol abuser, such as Mr. De La Rosa appears to be, would be
physically and mentally affected by the quantity of beer he consumed that day.

       As for the accident, no one actually witnessed it other than Mr. De La Rosa
himself. His uncontested testimony was that wood leaning against the ladder obstructed
his foot placement, causing him to slip. Thus, he provided evidence of something other
than intoxication causing his fall.

        Therefore, the Court holds that based on the evidence presented, Mr. De La Rosa
is likely to prevail in proving a compensable injury at trial and is entitled to a panel of
physicians as well as payment for the emergent care and surgery he received.

       However, as to temporary disability, Mr. De La Rosa did not provide sufficient
evidence as to his compensation rate or the extent and duration of any disability. See
Jones v. Crencor Leasing and Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7
(Dec. 11, 20 15). Thus, the Court denies his request for disability benefits at this time.

       IT IS, THEREFORE, ORDERED that:

 1. Mr. Lopez-Coronado shall provide Mr. De La Rosa with a panel of orthopedists
    from which he may choose an authorized physician in accordance with Tennessee
    Code Annotated section 50-6-204(3)(A)(i)(2019). He shall also pay the reasonable
    and necessary medical expenses for the emergent care and surgery Mr. De La Rosa
    received immediately following his accident.

 2. Mr. De La Rosa's request for temporary disability benefits is denied at this time.


                                            4
     3. This case is set for a Scheduling Hearing on March 12, 2020, at 10:00 a.m. Central
        Time. The parties must call 615-253-0010 or toll-free at 855-689-9049 to
        participate. Failure to call might result in a determination of the issues without your
        participation.



                                      ENTERED January /J..t, 2020.



                                ~.l~  Court of Workers' Compensation Claims


                                          APPENDIX

Exhibits:

1.        Rule 72 Declaration ofMr. Lopez-Coronado
2.        Southern Hills Medical Records
3.        Skyline Medical Records

Technical Record:

1.       Petition for Benefit Determination
2.       Dispute Certification Notice
3.       Order Transferring Case
4.       Mr. Lopez-Coronado's Statement of Opposition to Requested Relief
5.       Mr. De La Rosa's Witness List
6.       Mr. De La Rosa's Plain and Concise Statement




                               CERTIFICATE OF SERVICE

         A copy of the Expedited Hearing Order Granting Benefits was sent as indicated on

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