The opinion
FILED
Jan 16, 2020
09:30 AM(CT)
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,
Vv.
Employer,
And
LIBERTY MUT. INS. CORP.,
Insurer.
)
)
)
)
MAURICIO LOPEZ CORONADO ) State File No.: 93809-2019
)
)
)
) Judge Robert Durham
)
EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS
The Court conducted an expedited hearing on January 7, 2019, 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.’
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
'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.
TENNESSEE COURT OF
WORKERS' COMPENSATION
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 4:30 p.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.
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 arising
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, 2018). 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. Jd.
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 8.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
injury.
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, 2015). 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.
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 /(g 2020.
obert V. Durham, Judge
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
hs Rule 72 Declaration of Mr. Lopez-Coronado
2s Southern Hills Medical Records
3. Skyline Medical Records
Technical Record:
1. Petition for Benefit Determination
Ds 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
5
January 16, 2020.
Name
Certified
Email | Service sent to:
Ivan Lopez
xX Ivan@ivanlopezlaw.com
Owen Lipscomb
Xx Owen.Lipscomb@Libertymutual.com
Js dha
rents Shruxn; Clerk of Court
Court of Werkers’ Compensation Claims
WC.CourtClerk@tn.gov
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
form with the Clerk of the Court of Workers’ Compensation Claims within seven
business days of the date the expedited hearing order was filed. When filing the Notice
of Appeal, you must serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements should include: (1) a
statement summarizing the facts of the case from the evidence admitted during the
expedited hearing; (2) a statement summarizing the disposition of the case as a result of
the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
argument, citing appropriate statutes, case law, or other authority.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
LB-1099
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
www. tn.gov/labor-wid/weomp.shtml
wce.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Vv.
Employer
Notice
Notice is given that
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers’ Compensation Claims at
to the Workers’ Compensation Appeals
Board. [List the date(s) the order(s) was filed in the court clerk’s office]
Judge
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional Information
Type of Case [Check the most appropriate item]
L] Temporary disability benefits
L] Medical benefits for current injury
LC Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: LJEmployer LJEmployee
Address:
Party’s Phone: Email:
Attorney's Name: BPR#:
Attorney’s Address: Phone:
Attorney's City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellant *
rev. 10/18 Page 1 of 2 RDA 11082
Employee Name: SF#: DOI:
Appellee(s)
Appellee (Opposing Party): At Hearing: L]JEmployer LJEmployee
Appellee’s Address:
Appellee’s Phone: Email:
Attorney’s Name: BPR#:
Attorney’s Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I,
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules
of Board of Workers’ Compensation Appeals on this the day of , 20
, certify that | have forwarded a true and exact copy of this
[Signature of appellant or attorney for appellant]
LB-1099 rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, | am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name: 2. Address:
3. Telephone Number: 4. Date of Birth:
5. Names and Ages of Ail Dependents:
Relationship:
Relationship:
Relationship:
Relationship:
6. lam employed by:
My employer’s address is:
My employer’s phone number is:
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$
8. | receive or expect to receive money from the following sources:
AFDC $ per month beginning
ssl $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Comp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are:
Rent/House Payment $ permonth Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe: )
10. Assets:
Automobile $ (FMV)
Checking/Savings Acct. $
House $ __ (FMV)
Other $ Describe:
11. My debts are:
Amount Owed To Whom
| hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
day of , 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082