BEFORE THE IOWA WORKERS’ COMPENSATION …



BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER

______________________________________________________________________

:

PATRICIA A. WELDON & TERRY L. :

WELDON as Guardians & :

Conservators of ANGELA M. DAVIS, : File No. 5040858

:

Claimant, :

:

vs. : A R B I T R A T I O N

:

KATHY K. GOFF f/k/a KATHY K. : D E C I S I O N

ALDER & WAYNE GOFF d/b/a :

KATHY'S TREE & STUMP REMOVAL, :

:

Employer, : Head Note Nos.: 1601, 2001

Uninsured, :

Defendant. :

______________________________________________________________________

STATEMENT OF THE CASE

Patricia Weldon and Terry Weldon, as guardian and conservator of Angela Davis, claimant, filed a petition in arbitration seeking workers' compensation benefits from Kathy Goff, f/k/a Kathy Alder, and Wayne Goff, d/b/a Kathy’s Tree and Stump Removal (KTS), as defendant. Defendants were not insured on the date of injury. This case was heard in Des Moines on October 23, 2013 and fully submitted November 22, 2013. The record in this case consists of claimant’s exhibits 1 through 36 and 39 through 57; defendant’s exhibits A through Z, and the testimony of Patricia Weldon, Wayne Goff and Kathy Goff.

ISSUES

1. Whether an employee-employer relationship existed between claimant and Wayne Goff.

2. Whether claimant’s claim for benefits is barred under Iowa Code section 85.16(2).

3. The extent of claimant’s entitlement to permanent partial disability benefits.

4. Rate.

5. Whether there is a causal connection between the injury and the claimed medical expenses.

Defendants stipulated an employee-employer relationship existed between claimant and Kathy Goff d/b/a KTS. Defendants dispute Wayne Goff was an employer.

On the hearing report defendants noted they disputed claimant sustained an injury that arose out of an in the course of employment. As noted above, defendants also contend that claimant’s claim for benefits is barred under Iowa Code section 85.16(2). A review of the transcript, record and post-hearing briefs indicate defendants do not dispute claimant sustained an injury that arose out of an in the course of employment. They do contend claimant’s claim for benefits is barred by application of Iowa Code section 85.16(2). For this reason the issue of whether claimant sustained an injury that arose out of and in the course of employment is not an issue determined in this decision. Whether claimant’s claim is barred by application of Iowa Code section 85.16(2), is an issue in dispute.

FINDINGS OF FACT

Claimant was 47 years old at the time of hearing. Claimant graduated from high school. Claimant has worked as a waitress, done accounting work, and cleaned rental properties.

Claimant’s prior medical and legal history is relevant. Records indicate claimant began using methamphetamine when she was 19. (Exhibit H, page 2) Claimant’s use continued until she was 24. She resumed her use of the drug when she was 31. At the age of 32 claimant began intravenous use of the drug. (Ex. H, p. 2)

In 2002 claimant was arrested and accused of manufacturing methamphetamine. In 2003 she pled guilty to manufacturing meth. In 2004, while on probation, she tested positive for use of meth. Records from the Iowa Department of Corrections indicate claimant admitted to using meth in 2005. (Ex. F and G)

Patricia Weldon testified she is claimant’s mother. She testified claimant was a drug addict and used methamphetamine. She said she tried to get claimant into drug treatment programs. She testified that in April of 2012 she believed her daughter was still struggling with addiction. (Ex. W pp. 13, 26, 54)

Claimant began working for KTS in 2011. KTS is a tree trimming and removal service. The company also removes stumps.

Kathy Goff testified she has owned KTS since March of 1988. She married Wayne Goff in August of 2003. Ms. Goff testified she is the sole owner of KTS, both before and after the marriage. (Ex. 5, pp. 5-7) Ms. Goff testified that as owner of the business she does advertising; orders, buys and finances equipment; gets insurance; answers phones; bids and collects on all jobs; contacts locators regarding lines and cables; monitors the periods workers work; and takes all books and records to her accountant. She also worked at job sites if needed and performed all jobs except to go up in a bucket lift. The business card for KTS lists Ms. Goff as the owner. (Ex. C)

Ms. Goff testified she also owns three rental properties in her own name. She testified she and her husband Wayne co-own seven to eight other rental properties. Along with working for KTS, claimant also did clean up and remodeling for the Goff rental properties. Claimant bid on those jobs and hired people to help her. Ms. Goff testified her rental properties were a separate business from KTS.

Wayne Goff testified in deposition he was last employed as a truck driver in 1999 or 2000. Mr. Goff was a truck driver in the Teamsters Union. He said he receives a pension from the Teamsters Central States and Welfare Fund. He said he began receiving a pension in 2001. He testified the pension plan will suspend his benefits if he owned or was employed by KTS. Mr. Goff testified he does not have an ownership interest in KTS and that he is not an employee of KTS. He said he voluntarily helps his wife with her business. (Ex. 4, pp. 5-8) He testified he does not draw any pay or wages from KTS. He said he works on KTS equipment. He said he also buys parts, fuel and oil for KTS equipment.

Both Mr. and Ms. Goff testified that all tools at job sites are furnished by KTS.

Mr. Goff testified his name is on the checking account for KTS. He testified he was a signatory on the account for convenience purposes to buy materials, parts and fuel for the business.

Mr., Goff testified he trained claimant. He testified claimant was to take care of rope used to lower branches. Claimant would untie ropes, clear the ropes, and get the rope back to the tree. He said claimant was trained not to wrap the rope around her hand. He said claimant was told that if the rope went into the chipper, to never grab the rope, but to hit a safety bar on the chipper.

Tax returns from 2003 through 2011 from KTS list Wayne Goff as the owner of the business. (Ex. 1, 2, 4 pp. 8-10, Ex. A)

Both Wayne and Kathy Goff testified they did not know Wayne Goff was listed as the owner on tax returns for KTS until it was brought to their attention in 2012

In a September 25, 2012 letter Kyle Schlautman, CPA, indicated his firm had been preparing the tax returns for KTS for over 10 years. He indicated that in 2002, Kathy Goff, formerly Kathy Alder, was reported as owner of KTS. Mr. Schlautman indicated that in 2003 Kathy Alder married Wayne Goff and they filed a joint return. On the joint return Wayne was listed as the taxpayer and Kathy was listed as the spouse. This had the unintended consequence, with the tax software, of replacing Kathy with Wayne as the taxpayer on the Schedule C form regarding KTS. Schedule C should have named Kathy Goff, not Wayne, as the owner. An amended Schedule C was filed in 2012, for the years 2003 through 2011, showing Kathy Goff as the taxpayer for KTS (Ex. A and B)

Mr. and Mrs. Goff both testified that based on the advice of Mr. Schlautman they believed that workers for KTS were independent contractors. (Ex. 4 pp. 13-14) Ms. Goff testified that in 2011 she gave workers with KTS 1099 forms. Ms. Goff testified that after talking with legal counsel, in preparation for this case, she believed the workers with KTS, including claimant, were actually employees.

Richard Auffart testified in deposition he knows claimant. He testified he spoke with claimant two days before June 14, 2012 while he and claimant were at Mike McSorely’s house. Mr. Auffart testified that when he saw claimant, she was twitchy, not able to carry on a conversation, and unfocused. He said she was scratching her arms and face. McSorely indicated he and claimant had done meth together. Mr. Auffart assumed this was why claimant was acting abnormal. Mr. Auffart testified he believed claimant was always on meth. (Ex. Z, Deposition pp. 9-14, 17)

Cindi Miller testified in deposition she was on the crew with KTS, with Mr. Goff and claimant on June 14, 2102. Prior to going to the job site, Ms. Miller said claimant arrived late. When she arrived Ms. Miller told claimant she had greased the wood chipper. Claimant went to the garage to get the grease gun. Ms. Miler than told claimant a second time she had already greased the chipper and claimant put the grease gun away. (Ex. Y, pp. 5-6)

When the work group went to get fuel, claimant had trouble checking oil and using a credit card for fuel. Ms. Miller testified claimant was not acting like herself and seemed dazed and confused. (Ex. Y, pp. 5-6)

Ms. Miller and Mr. and Ms. Goff all said claimant was not wearing any makeup that day, which was unusual. Both Mr. and Ms. Goff testified claimant did not appear intoxicated on the morning of June 14, 2012.

At the jobsite, Mr. Goff got into the bucket truck and went into the air. He began to cut tree limbs. Limbs were moved to the ground by ropes. Mr. Goff testified 2012 was claimant’s second season of working for KTS. He reiterated claimant knew that if a rope went into the wood chipper, she was to hit a safety bar on the chipper and walk away.

Ms. Miller testified in deposition there was a known rule to not grab a rope going into the chipper. (Ex. Y, p. 9)

Ms. Miller testified she untied the rope from a limb with claimant. She said claimant had difficulty untying the rope. (Ex. Y, p. 18)

Ms. Miller testified she saw the rope go into the chipper. She said she saw claimant had the rope still in her hand. Ms. Miller said she yelled and motioned for claimant to drop the rope. Ms. Miller said claimant yanked back on the rope. She said the chipper pulled the rope and claimant went sailing through the air above Ms. Miller’s head. (Ex. Y, Dep. pp. 19-21)

Claimant’s head struck a table in front of the chipper used to feed wood. Ms. Miller said claimant was badly hurt. She motioned for Mr. Goff to come down from the bucket and called 911. (Ex. Y, p. 21)

Claimant was life flighted to Creighton Medical Center. She was assessed as having a skull fracture in several places, a large subdural hematoma, and a severe brain injury, among other injuries. (Ex. 11)

A urine sample was obtained from claimant shortly after her arrival at the emergency room at Creighton. The urine sample was later found to be positive for amphetamine and THC. (Ex. J, p. 1)

Ms. Weldon testified in deposition that before surgery, claimant’s head was shaved. A small ring of long hair was taken off the back of claimant’s head and neck area and put in a bag. The sample was given to Ms. Weldon. (Ex. W, p. 8)

On September 14, 2012, Amanda Hall, with Drug Testing Services, was given the hair in the bag from the June 14, 2012 sample. On September 14, 2012, two other hair samples were also taken from claimant’s body. The hair sample from June 14, 2012 were later found to be positive for amphetamine, methamphetamine and THC. (Ex. Q and O) The level of meth in the June 14, 2012 sample was found to fall nearly in the high or constant use range. The samples taken on September 14, 2012 were negative for methamphetamine. (Ex. 55)

Claimant underwent emergency surgery consisting of a craniotomy and evacuation of a large epidural hematoma and a small subdural hematoma. (Ex. 16)

An accident report from the Pottawattamie County Sheriff’s Office indicated Mr. Goff was interviewed at Creighton Medical Center. The report identifies Mr. Goff as a co-owner of KTS. (Ex. I) Mr. Goff testified he spoke with police at the hospital but did not tell police he was a co-owner of KTS.

Ms. Weldon testified claimant was unconscious for 7 to 10 days and spent 34 days in the hospital.

On July 11, 2012, claimant’s mother and father were named as guardians and conservators for claimant. (Ex 10)

Claimant was in-patient at Creighton Medical center until July 18, 2102. She was discharged and admitted to Madonna Rehabilitation Hospital. Upon admission to Madonna claimant was oriented to person only. She believed she was still at Creighton and it was 1987. (Ex. 13 and 14)

On September 27, 2012, claimant was evaluated for vision. Records from Creighton indicated damage to the optic nerve in the right eye. Claimant was able to perceive some light and movement on the left, but the right eye had no light perception. Claimant was assessed as having optic nerves in both eyes affected by trauma. (Ex. 32)

On November 15, 2012, claimant was discharged from Madonna. She was discharged to Quality Living Initiatives (QLI). QLI is a rehabilitation center.

In a November 26, 2012 assessment with QLI claimant indicated substance abuse was a big part of her life and she had smoked meth on a daily basis. Claimant was oriented to person, general place and time. Because of vision limitations claimant required assistance outside her room. Claimant had only minimal vision in the left eye. She was found to need 24 hour skilled residential services due to cognitive difficulties caused by head trauma that impaired memory and functional problem solving. (Ex. T1 p. 1-12)

A December 17, 2012 assessment, performed by Charles Taylor, M.D., indicated claimant had steadily improved and was almost back at baseline for cognitive function. (Ex. T2, pp. 1-2)

On February 4, 2013, claimant was assessed by Christine Jeffrey, M.D. Dr. Jeffrey found claimant was unable to independently care for herself and required a living environment where 24 hour supervision was provided. (Ex. T3)

In a March 25, 2013 evaluation, Dr. Jeffrey noted claimant had no independent recall of events around her injury. Claimant showed emotional distress when discussing her injury. Given this, it was recommended claimant not be interrogated about her injury. (Ex. T4)

Ms. Weldon testified that while claimant was at QLI she could consistently recognize her parents, eat and dress herself.

In approximately February of 2013 claimant was transferred to a nursing home in Tabor, Iowa, called Tabor Manor. Ms. Weldon testified claimant had total care at Tabor Manor. While at Tabor, the Iowa Department for the Blind was contacted and claimant began to use a cane.

In June of 2013 claimant transferred to the Iowa Department for the Blind. At the time of hearing claimant was still enrolled in programs at the Iowa Department for the Blind to help her learn skills and cope with her lack of sight. (Ex. V, pp. 8-23)

In a July 15, 2013 report, Richard Stieg, M.D., gave his opinion regarding claimant’s intoxication at the time of the accident. Dr. Stieg is board certified in neurology, pain medicine and addiction medicine. He opined that based on his review of depositions, lab reports and medical records, claimant was using meth and marijuana at the time of the accident. He indicated testimony of acquaintances and co-workers indicated claimant was cognitively impaired on the date of injury causing claimant to exercise poor judgment. Based on his experience in a clinical setting, and his review of depositions and medical records, he opined claimant was intoxicated on the date of injury and her intoxication was the cause and substantial factor in producing the accident resulting in claimant’s injury. (Ex. S1)

In a September 9, 2013 report, Richard Corbett, Ph.D., gave his opinions of claimant’s alleged intoxication. Dr. Corbett has a doctorate in medicinal chemistry. At present he is a consultant in chemical toxicology. (Ex. 6 and 7)

Dr. Corbett indicated he read Dr. Stieg’s report. He found Dr. Stieg’s opinion, that claimant was confused and lacked judgment, had no basis. He opined collection of the June 14, 2012 hair samples was inconsistent for standard procedures for collection of hair samples and was not reliable. He opined the two hair samples taken in September of 2012 showed an absence of any drug abuse. (Ex. 8)

Dr. Corbett opined that it is not possible to determine human impairment on the basis of drug concentration in human fluids, and that the urine tests, showing amphetamine and THC in claimant’s system, could not be used to provide information if the drugs caused impairment to claimant. (Ex. 8)

In a September 14, 2013 letter, the Iowa Department of Human Services indicated that on that date the medical expenditures regarding care for claimant totaled $189, 580.85. (Ex. 39)

In a September 26, 2013 report, Dr. Stieg gave his response to Dr. Corbett’s critique. Dr. Stieg opined claimant had confusion and lack of judgment at the time of the accident based on : (1) methamphetamine and THC were present in hair samples taken the date of injury; (2) amphetamine and THC were found in claimant’s urine sample on the date of injury; (3) claimant indicated at QLI she smoked meth on a daily basis before the accident; (4) Mr. Auffart indicated in deposition claimant was using meth two days before the accident, that claimant seemed confused, and he believed claimant was always using meth; (5) Ms. Miller testified claimant was unfocused and dazed and confused on the date of injury; (6) claimant had worked for KTS the season before, was experienced and had been given instruction regarding not grabbing rope that went into the chipper. (Ex. S3)

Dr. Stieg indicated he had spoken with the Chief Toxicologist at the lab where the hair samples were tested and learned the source of THC and meth were from claimant’s hair and not blood. Dr. Stieg indicated the presence of amphetamine and THC in the urine and indicated claimant used meth within 48 hours of the accident and was using marijuana five days prior. He noted it was unclear where the September 2012 hair samples came from on claimant’s body. (Ex. S3)

In a September 26, 2013 note, Dr. Jeffrey indicated claimant reached maximum medical improvement (MMI) on February 18, 2013. She indicated that because of claimant’s cognitive and vision impairments claimant was not able to live in a large facility unattended. Claimant was classified as blind. She opined claimant would never be able to live independently. She found claimant was 100 percent disabled due to vision loss. She did not believe claimant could be gainfully employed. (Ex. 21)

In an October 22, 2013 letter, Creighton Medical Center noted a lien on hospital services rendered to claimant for $731,302.47. (Ex. 40) Claimant also incurred medical bills from Creighton Medical Associates for over $37,000.00; from Madonna for $348,980.00; from QLI for $67,772.70. (Ex. 40-54)

In 2011 claimant earned $3,023.00 with KTS. In 2012 claimant earned $800.00 with KTS. Testimony from Mr. and Ms. Goff indicated claimant earned about $12.00 an hour with KTS. The 1099’s for 2011 and 2012 both identify Kathy Goff as the payer. (Ex. D and 36)

CONCLUSIONS OF LAW

The first issue to be determined is if there was an employee-employer relationship between claimant and Wayne Goff at the time of the injury.

The party who would suffer loss if an issue were not established has the burden of proving that issue by a preponderance of the evidence.  Iowa R. App. P. 6.14(6).  

Section 85.61(11) provides in part:  

"Worker" or "employee" means a person who has entered into employment of, or works under contract of service, express or implied, or apprenticeship, for an employer. . . .  

It is claimant's duty to prove, by a preponderance of the evidence, that claimant or claimant's decedent was an employee within the meaning of the law.  Nelson v. Cities Serv. Oil Co., 259 Iowa 1209, 146 N.W.2d 261 (1967).  Intent of the parties to create an employment contract is a threshold consideration Parsons v Proctor and Gamble Mfg.. Co., 514 N.W. 2d 891 (Iowa 1994)

Factors to be considered in determining whether an employer-employee relationship exists are:  (1) the right of selection, or to employ at will, (2) responsibility for payment of wages by the employer, (3) the right to discharge or terminate the relationship, (4) the right to control the work, and (5) identity of the employer as the authority in charge of the work or for whose benefit it is performed.  The overriding issue is the intention of the parties.  Where both parties by agreement state they intend to form an independent contractor relationship, their stated intent is ignored if the agreement exists to avoid the workers' compensation laws, however.  Likewise, the test of control is not the actual exercise of the power of control over the details and methods to be followed in the performance of the work, but the right to exercise such control.  Also, the general belief or custom of the community that a particular kind of work is performed by employees can be considered in determining whether an employer-employee relationship exists.  Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503 (Iowa 1981); McClure v. Union County, 188 N.W.2d 283 (Iowa 1971); Nelson, 259 Iowa 1209, 146 N.W.2d 261; Lembke v. Fritz, 223 Iowa 261, 272 N.W. 300 (1937); Funk v. Bekins Van Lines Co., I Iowa Industrial Commissioner Report 82 (App. December 1980).  

Claimant relies on three main pieces of evidence to support her position that Wayne Goff, along with Kathy Goff, was an employer at the time of the injury. That evidence is the tax returns, schedule C for KTS, an accident report filed by the sheriff’s department, and the fact that Wayne Goff had supervisory duties on the job site.

On the schedule C, regarding profits or losses for KTS, Mr. Groff is listed as the owner of the business. (Ex. 1, 2 and A)

Both Mr. and Ms. Goff testified that Mr. Goff had no ownership interest in KTS. Both testified an error from the accountant led to Mr. Goff being named as the owner of KTS.

Mr. Schlautman, the accountant who prepares the returns for KTS, indicated it was error for Mr. Goff to be listed as the owner of KTS on tax forms. He said this error occurred when the Goffs began filing a joint return and Mr. Goff was listed on the joint return as the taxpayer. The change had the unintended result, because of tax software, of naming Mr. Goff as the owner of KTS on the schedule C. (Ex. A and B)

Claimant has no evidence contradicting this explanation regarding the tax records. Based on the record, it is found the tax records are not evidence Wayne Goff had an ownership interest in KTS.

Both Mr. and Mr. Goff credibly testified Mr. Goff has no ownership interest in KTS. There is no evidence Mr. Goff receives a salary or any earnings from KTS. A business card for the company identifies Ms. Goff as the owner of KTS. The record indicates Ms. Goff does advertising for KTS. She orders, buys and finances all equipment. She bids and makes collections for jobs. She gets insurance for the company. She performs all customer contact. She hires the locators for jobs.

There is no evidence Wayne Goff has the power to hire or fire employees. There is no evidence he sets schedules for employees. There is no evidence he furnishes tools for workers of KTS. There is no evidence Wayne Goff receives any pecuniary interest from the labor of the people who work for KTS. There is no evidence there was any intent that there was an employee-employer relationship between Mr. Goff and claimant.

Given this record, claimant has failed to carry her burden of proof Wayne Goff was an owner or co-owner of KTS. As indicated above, Kathy Goff and KTS have stipulated they are the employer in this case.

The next issue to be determined is if claimant’s claim for benefits is barred under Iowa Code section 85.16(2) because claimant’s intoxication was a substantial cause of the accident.

Iowa Code section 85.16(2) indicates that:  

No compensation under this chapter shall be allowed for an injury caused:

2.  By the employee’s intoxication, which did not arise out of and in the course of employment but which was due to the effects of alcohol or another narcotic, depressant, stimulant, hallucinogenic, or hypnotic drug not prescribed by an authorized medical practitioner, if the intoxication was a substantial factor in causing the injury.  

Defendants raise the affirmative defense of intoxication under Iowa Code section 85.16(2).  To be successful in such a defense, defendants have the burden of proof to show by a preponderance of the evidence that claimant was intoxicated at the time of injury and that such intoxication was a substantial factor in causing the injury.  Reddick v. Grand Union Tea Co., 230 Iowa 108, 115; 296 N.W. 800, 803 (1941).  

A factor is substantial when reasonable persons considering that factor would regard it as a cause, that is, as being in some pertinent part responsible for the result produced.  See Pedersen v. Kuhr, 201 N.W.2d 711 (Iowa 1972).  A factor is substantial when it is material in producing a result.  A factor may be substantial without being either exclusively or even predominately the determinant of the result, however.  See, Jones v. City of Des Moines, 355 N.W.2d 49 (Iowa 1984); Montgomery Properties v. Economy Forms, 305 N.W.2d 470 (Iowa 1981).  

For the intoxication defense to apply, defendants must show a claimant was intoxicated at the time of injury and the intoxication was a substantial factor in causing the injury. Garcia v Naylor Concrete Co., 650 N.W. 2d 87, 90 (Iowa 2002)

The blood-alcohol level revealed by chemical testing is important evidence on the question of intoxication.  Id.  

The record indicates claimant has a history of use of methamphetamine. Claimant began using the drug at 19. Court records indicate she was using meth in 2005. Claimant’s mother testified she believed her daughter was still struggling with addiction in April of 2012. (Ex. W, pp. 13, 26, and 54)

Richard Auffart testified in deposition he spoke with claimant two days before her accident. At that time, claimant was unfocused and unable to carry on a conversation. Mr. Auffart was told claimant had smoked meth two days before the accident. He believed she was always on meth. (Ex. Z pp. 9-14, 17)

Ms. Miller, a co-worker, testified the morning before the accident claimant appeared dazed and confused.

Urine samples taken at the hospital after claimant’s injury were positive for amphetamine and THC. (Ex. J, p. 1)

Hair samples taken from claimant after the accident showed meth levels that nearly fell into the constant use level. (Exs. O, P, R and Q)

While at QLI, claimant indicated she was a daily user of meth. (Ex. T1, p. 1)

Two experts have opined regarding claimant’s intoxication at the time of injury. Dr. Stieg is board certified in neurology, pain medicine and addiction medicine. He has an extensive clinical background. He opined that based on his review of the depositions, claimant’s medical records, and drug testing claimant was intoxicated at the time of the injury. (Ex. S and S2, p. 6-13)

Dr. Corbett opined Dr. Stieg’s opinions were speculative and baseless. According to his résumé, Dr. Corbett has spent the last 16 years acting as a consultant, mostly in litigation. Dr. Corbett indicated that a urine sample cannot be used to establish impairment. He noted that hair samples taken from claimant in September of 2012 showed an absence of drug abuse. He believed the hair taken in the June 14, 2012 sample was inconsistent with standard procedures for gathering samples. He also noted Mr. and Ms. Goff both indicated claimant did not appear intoxicated on the morning of the accident. (Ex. 8)

In rebuttal, Dr. Stieg noted that the urine sample, along with other evidence, can be used to reach a conclusion claimant was intoxicated. He noted it was unclear where the September 2012 hair samples came from on claimant’s body. As claimant was drug free for three months at the time of the September 2012 samples, the hair an inch and a half from the scalp would be drug free. Dr. Stieg noted there were no standard procedures for collection of hair, and that high levels of meth found in the hair from the June 2012 sample were from hair and not from blood. Finally he noted that using Ms. Miller’s testimony, with other testing and evidence, is indicative claimant was intoxicated at the time of the injury.

Claimant had a history of meth use. Witnesses before the accident found her dazed, unfocused and confused. Claimant tested positive for meth and amphetamine in two drug tests the day of the accident. One test showed a high level of meth use. Based on these facts, and the others detailed above, it is found the opinions of Dr. Stieg regarding intoxication are more convincing than those of Dr. Corbett.

Claimant has a long history of meth use. Her mother believed she was still using in April of 2012. Mr. Auffart testified claimant was using meth two days before the accident. Ms. Miller testified claimant appeared dazed and confused the day of the accident. Claimant had been routinely told not to grab a rope if it went into the chipper. 2012 was claimant’s second season of working for KTS. Despite her training and experience, claimant grabbed and pulled the rope as it went into the chipper. Urine samples taken the day of the accident were positive for amphetamine and THC. Hair samples taken the day of the accident showed a high level of use for meth. Claimant told QLI staff after her injury she was a daily meth user before her accident. Dr. Stieg’s opinions regarding claimant’s intoxication is found more convincing. Based on these facts and the others detailed above, it is found defendants have carried their burden of proof claimant was intoxicated at the time of the accident on June 14, 2012.

Dr. Stieg also opined that claimant’s intoxication was a substantial factor in the cause of the accident. This opinion is based on the facts detailed above regarding claimant’s long-term meth use, the levels of meth found in hair samples, testimony of witnesses, and claimant’s own admission regarding her drug use. Dr. Stieg indicated that chronic use of meth is associated with inattention, insomnia, daytime sleepiness and cognitive difficulties. Based on these facts and the others detailed above, it is found that Dr. Stieg’s opinion, that claimant’s intoxication was a substantial cause of her accident, is more convincing than the opinions of Dr. Corbett.

Given this record, defendants have carried their burden of proof that claimant was intoxicated at the time of the injury and her intoxication was a substantial cause leading to the accident.

Claimant’s accident was an ugly event. It left claimant legally blind and with cognitive difficulties. The record indicates that at least for now, claimant will not be able to live independently. I have empathy for claimant, her mother and father. However, the record indicates claimant was using meth. Testing and testimony indicates she was a daily user. Testimony and evidence indicates she was confused and unfocused at the time of the injury. Given this record I cannot find in claimant’s favor.

As claimant’s claim for benefits is barred under Iowa Code section 85.16(2), all other issues in this case are moot.

ORDER

THEREFORE, it is ordered:

Claimant shall take nothing from these proceedings.

Both parties shall pay their own costs.

This decision and claim file will be referred to the Iowa Division of Workers’ Compensation for further review whether additional criminal or civil proceedings should be initiated due to the employer’s failure to have worker’s compensation insurance under Iowa Code  Chapter 87.

Signed and filed this ___7th ____ day of February, 2013.

Copies to:

Edward F. Noethe

Attorney at Law

20 North 16TH St.

Council Bluffs, IA 51503

enoethe@

Gregory G. Barnsten

Attorney at Law

PO Box 249

Council Bluffs, IA 51502

ggbarnsten@

Maynard.H. Weinberg

Attorney at Law

PO Box 241712

Omaha, NE 68124

m9642@

JFC/kjw

-----------------------

JAMES F. CHRISTENSON

DEPUTY WORKERS’

COMPENSATION COMMISSIONER

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