ORDER ON REVIEW

THE SAIF CORPORATION REQUESTS REVIEW OF ADMINISTRATIVE LAW Court (ALJ) MICHAEL V. JOHNSON'S ORDER THAT SET ASIDE ITS DENIAL OF CLAIMANT'S LEFT THUMB INJURY CLAIM. ON REVIEW, THE ISSUE IS COMPENSABILITY. WE REVERSE.

FINDINGS OF FACT

CLAIMANT, AN ELECTRICAL APPRENTICE, INJURED HIS LEFT THUMB AT WORK AT APPROXIMATELY 11:45 A.M. ON MAY 13, 1993. HE WAS ON A LADDER, WORKING ON AN ELECTRICAL BOX, WHEN HE LOST HIS BALANCE AND HIS LEFT HAND CAME INTO CONTACT WITH A LARGE FAN THAT WAS ROTATING DIRECTLY IN FRONT OF HIM.

CLAIMANT DRINKS AT LEAST FOUR BEERS PER DAY. THE NIGHT BEFORE HIS ACCIDENT, HE HAD BEEN OUT DRINKING ALCOHOL AND DANCING. HE GAVE VARIED ACCOUNTS AS TO THE AMOUNT OF ALCOHOL HE CONSUMED. *FN1 HE FAILED TO MEET MR. DEWITT, A CO-WORKER, AT 6:00 A.M. ON THE MORNING OF MAY 13 TO CARPOOL TO WORK. RATHER, HE ARRIVED AT THE WORK SITE, A CHICKEN FARM IN CRESWELL, AT APPROXIMATELY 9:00 A.M. (NEARLY TWO HOURS LATE) AND TOLD DEWITT THAT HIS ALARM CLOCK HAD BEEN "MESSED UP" BY AN ELECTRICA L STORM THE PREVIOUS NIGHT. HE THEN BEGAN WORKING ON THE SAME PROJECT HE HAD BEGUN THE DAY BEFORE, INSTALLING CONDUIT AND WIRE FOR ADDITIONAL FANS IN THE BARN.

FOLLOWING THE ACCIDENT, CLAIMANT WAS TAKEN TO THE HOSPITAL IN EUGENE BY ANOTHER CO-WORKER, MR. DAILY, DRIVING A COMPANY VAN. AT THE HOSPITAL, CLAIMANT INITIALLY DENIED HE HAD CONSUMED ALCOHOL. HE LATER REVISED HIS STORY AND ADMITTED TO DRINKING ONE BEER ON THE WAY TO THE HOSPITAL. HE THEN ADMITTED TO THE HAND SURGEON, DR. DREYER, THAT HE HAD DRUNK TWO BEERS.

CLAIMANT WAS ASSESSED AS BEING ALERT AND ORIENTED AT THE HOSPITAL. PRIOR TO UNDERGOING LEFT THUMB SURGERY, ROUTINE BLOOD TESTING WAS ADMINISTERED. THOSE TESTS, TAKEN LESS THAN 1 1/2 HOURS AFTER THE ACCIDENT, INDICATED THAT CLAIMANT HAD A BLOOD ALCOHOL LEVEL OF .34.

NEITHER CO-WORKER DAILY, NOR CO-WORKER DEWITT, WHO ADMINISTERED FIRST AID AT THE WORK SITE, NOTED ANY ALCOHOLIC ODOR, SLURRED SPEECH, OR SIGNS OF INTOXICATION BY CLAIMANT AT ANY TIME BEFORE OR AFTER THE INCIDENT. NEITHER CO-WORKER HAD MUCH CLOSE CONTACT OR INTERACTION WITH CLAIMANT PRIOR TO THE ACCIDENT, HOWEVER, AS THEY WERE WORKING AT OPPOSITE ENDS OF THE BARN. FURTHER, BECAUSE THE STENCH OF CHICKENS WAS OVERPOWERING, THEY WERE WEARING RESPIRATORS TO DO THEIR WORK. CLAIMANT WAS ALSO CHEWING TOBACCO THE MORNING OF THE ACCIDENT.

DR. JACOBSEN, AN EXPERT IN ADDICTION MEDICINE, REVIEWED CLAIMANT'S MEDICAL RECORDS. BASED ON THE RESULTS OF CLAIMANT'S BLOOD ALCOHOL LEVEL TESTS AND HIS REVIEW OF THE RECORDS, DR. JACOBSEN OPINED THAT CLAIMANT WAS SIGNIFICANTLY IMPAIRED BY ALCOHOL AT THE TIME OF HIS INJURY AND THAT CONSUMPTION OF ALCOHOL WAS THE MAJOR CONTRIBUTING CAUSE OF THE ACCIDENT.

IT IS THE EMPLOYER'S (UNWRITTEN) POLICY THAT, AS A SAFETY PRECAUTION, THE ELECTRICAL EQUIPMENT BEING WORKED ON SHOULD BE TURNED OFF WHILE THE WORK IS IN PROGRESS. THE BANK OF FANS IN THE AREA WHERE DAILY AND DEWITT WERE WORKING HAD BEEN SHUT OFF BY DEWITT. CLAIMANT DID NOT TURN OFF THE FANS IN HIS WORK AREA.

CONCLUSIONS OF LAW AND OPINION

THE ALJ FOUND THAT CLAIMANT ESTABLISHED A PRIMA FACIE CASE OF COMPENSABILITY, IN THAT THE INJURY TO CLAIMANT'S LEFT THUMB OCCURRED WHILE HE WAS AT WORK. THE ALJ FURTHER FOUND THAT SAIF FAILED TO CARRY ITS BURDEN OF PROOF UNDER FORMER ORS 656.005(7)(B)(C), AND DID NOT ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT CLAIMANT'S CONSUMPTION OF ALCOHOL WAS THE MAJOR CONTRIBUTING CAUSE OF THE INJURY. FINDING THAT CLAIMANT WAS CREDIBLE BASED UPON HIS DEMEANOR, THE ALJ DETERMINED THAT CLAIMANT HAD NOT CONSUMED ANY ALCOHOL BEFORE HIS INJURY OCCURRED. THE ALJ FURTHER CONCLUDED THAT EVEN IF CLAIMANT HAD CONSUMED ALCOHOL OR OTHER INTOXICANTS, CLAIMANT WAS NOT IMPAIRED AT THE TIME OF THE ACCIDENT. FINALLY, THE ALJ HELD THAT EVEN IF CLAIMANT WAS INTOXICATED, SAIF FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT THE INTOXICATION WAS THE MAJOR CAUSE OF THE ACCIDENT.

ON REVIEW, SAIF CONTENDS THAT THE ALJ'S ULTIMATE CONCLUSION, THAT CLAIMANT DID NOT BEGIN CONSUMING ALCOHOL UNTIL AFTER THE ACCIDENT OCCURRED, IS NOT SUPPORTED BY THE RECORD. SAIF ALSO ARGUES THAT THE UNREBUTTED EXPERT MEDICAL TESTIMONY ESTABLISHES THAT CLAIMANT'S CONSUMPTION OF ALCOHOL WAS THE MAJOR CONTRIBUTING CAUSE OF THE ACCIDENT.

SUBSEQUENT TO THE ALJ'S ORDER AND THE PARTIES' BRIEFING ON REVIEW, SENATE BILL 369 WAS ENACTED, WHICH AMENDED ORS 656.005(7)(B)(C). OR LAWS 1995, CH 332,. SEC. (SB 369, SEC. 1). THE AMENDED VERSION CHANGED THE BURDEN OF PROOF IN DRUG ANDALC OHOL CONSUMPTION CASES FROM "CLEAR AND CONVINCING" TO A "PREPONDERANCE OF THE EVI DENCE." *FN2

AS AN INITIAL MATTER, WE DISAGREE WITH THE ALJ'S FINDING THAT CLAIMANT WAS A CREDIBLE WITNESS. ALTHOUGH WE GENERALLY DEFER TO AN ALJ'S DEMEANOR-BASED CREDIBILITY FINDINGS, WE DO NOT DO SO WHERE INCONSISTENCIES IN THE RECORD RAISE SUCH DOUBT THAT WE ARE UNABLE TO CONCLUDE THAT MATERIAL TESTIMONY IS CREDIBLE. SEE ERCK V. BROWN OLDSMOBILE, 311 OR APP 519, 528 (1991). BECAUSE THIS IS SUCH A CASE, WE DO NOT DEFER TO THE ALJ'S CREDIBILITY FINDINGS. SEE DAVIES V. HAMEL LUMBER CO., 67 OR APP 35 (1984); SEE ALSO WILLIAM K. PORTER, 44 VAN NATTA 937 (1992).

UNLIKE THE ALJ, WE ARE NOT PERSUADED BY CLAIMANT'S VERSION OF EVENTS. IT IS INCONSISTENT WITH THE MEDICAL EVIDENCE AS WELL AS THE OTHER WITNESSES' TESTIMONY. *FN3 FOR EXAMPLE, CLAIMANT TESTIFIED THAT FOLLOWING THE ACCIDENT, WHEN CO-WORKERS DEWITT AND DAILY WERE DETERMINING HOW TO GET HIM TO THE HOSPITAL, HE WALKED OVER TO HIS TRUCK, RETRIEVED A RELATIVELY FULL PINT BOTTLE OF WHISKEY AND STASHED IT IN HIS PANTS. HE ALSO TESTIFIED THAT ON THE RIDE TO THE HOSPITAL, HE HAD DAILY STOP TWICE TO PURCHASE BEER. HE CLAIMED THAT WHILE DAILY WENT INTO THE STORES (TWO DIFFERENT CONVENIENCE STORES, ABOUT A MILE AND A HALF APART) HE DRANK SEVERAL SWALLOWS OF WHISKEY AND NEARLY FINISHED THE BOTTLE. HE ALSO TESTIFIED HE TOSSED THE PINT BOTTLE IN THE GARBAGE CONTAINER NEAR THE ENTRANCE TO THE HOSPITAL WITHOUT ANY OF HIS CO-WORKERS NOTICING.

CONVERSELY, CO-WORKERS DAILY AND DE WITT BOTH TESTIFIED THAT CLAIMANT DID NOT HAVE THE OPPORTUNITY, EITHER BEFORE HE REPORTED THE ACCIDENT TO THEM OR WHEN THEY WERE DECIDING HOW TO TRANSPORT CLAIMANT TO THE HOSPITAL, TO RETRIEVE THE PINT OF WHISKEY FROM HIS TRUCK. FURTHER, DAILY TESTIFIED THAT CLAIMANT DID NOT HAVE THE OPPORTUNITY TO SURREPTITIOUSLY CONSUME SIGNIFICANT AMOUNTS OF WHISKEY ENROUTE TO THE HOSPITAL. DAILY TESTIFIED THAT HE RELUCTANTLY MADE ONE STOP FOR BEER ON THE WAY, AND THAT IT WAS CLAIMANT WHO WENT INTO THE STORE AND PURCHASED THE BEER. HE DID NOT SEE CLAIMANT WITH ANY WHISKEY.

CLAIMANT'S SUPERVISOR, MR. PASLAY, TESTIFIED THAT UPON CLAIMANT'S ARRIVAL AT THE HOSPITAL, HE WAS THERE TO HELP CLAIMANT OUT OF THE TRUCK. HE WALKED CLAIMANT INTO THE EMERGENCY ROOM AND WAS WITH HIM UNTIL CLAIMANT WAS TURNED OVER TO THE NURSE. PASLAY DID NOT SEE CLAIMANT HOLDING OR DISPOSING OF A WHISKEY PINT. FURTHER, THE HOSPITAL RECORDS MENTION NOTHING ABOUT CLAIMANT CONSUMING WHISKEY AFTER THE ACCIDENT. INDEED, THE RECORD INDICATES CLAIMANT FIRST MENTIONED THAT HE CONSUMED SOME WHISKEY AFTER THE ACCIDENT WHEN HE MET WITH HIS EMPLOYER ON JUNE 4, 1993.

DR. JACOBSEN OPINED THAT EVEN IF CLAIMANT DID, AS HE STATED TO HIS EMPLOYER, DRINK TWO BEERS AND TWO SHOTS OF WHISKEY BETWEEN THE ACCIDENT AT 11:45 A.M. AND THE BLOOD SCREEN AT 1:02 P.M., THOSE DRINKS WOULD ONLY RAISE HIS BLOOD ALCOHOL LEVEL .06 TO .08. FACTORING IN THESE 4 POST-ACCIDENT DRINKS, DR. JACOBSEN DETERMINED, BASED ON CLAIMANT'S SIZE AND THE MANNER IN WHICH ALCOHOL IS ABSORBED BY THE BODY, THAT CLAIMANT'S BLOOD ALCOHOL WOULD HAVE BEEN IN THE RANGE OF .26 TO .28 AT THE TIME OF THE ACCIDENT. (EX. 6). DR. JACOBSEN EXPLAINED THAT THIS LEVEL IS EQUIVALENT TO BETWEEN 11 1/2 TO 16 UNMETABOLIZED DRINKS IN HIS BODY AT THE TIME OF THE INJURY. *FN4

UNDER THESE CIRCUMSTANCES, WE FIND THAT CLAIMANT WAS UNDER THE INFLUENCE OF ALCOHOL AT THE TIME OF THE ACCIDENT. GIVEN THIS CONCLUSION, WE MUST DETERMINE WHETHER SAIF HAS MET ITS BURDEN OF PROOF UNDER ORS 656.005(7)(B)(C). TO DEFEAT A FINDING OF COMPENSABILITY UNDER THE FORMER VERSION OF THE STATUTE, SAIF MUST SHOW, BY CLEAR AND CONVINCING EVIDENCE, THAT CLAIMANT'S CONSUMPTION OF ALCOHOLIC BEVERAGES WAS THE MAJOR CONTRIBUTING CAUSE OF THE INJURY. SAIF CANNOT MEET ITS BURDEN BY MERELY SHOWING THAT CLAIMANT CONSUMED ALCOHOL. RATHER, SAIF MUST ESTABLISH THAT CLAIMANT WAS IMPAIRED BY THE ALCOHOL AND THAT SUCH IMPAIRMENT WAS THE MAJOR CONTRIBUTING CAUSE OF THE INJURY. GRACE L. WALKER, 45 VAN NATTA 1273 (1993) AFF'D MEM 126 OR APP 313 (1994) (INTERPRETING FORMER ORS 656.005(7)(B)(C)); DAVE D. HOFF, 45 VAN NATTA 2312 (1993) AFF'D MEM, HOFF V. LEAVITTS FREIGHT SERVICE, 131 OR APP 363 (1994) (SAME). THE ISSUE IS, THEN, ONE OF CAUSATION.

DR. JACOBSEN REVIEWED CLAIMANT'S MEDICAL RECORDS AND OPINED THAT AN INDIVIDUAL WITH CLAIMANT'S ADMITTED DRINKING HABITS WOULD HAVE A HIGH TOLERANCE FOR ALCOHOL AND WOULD BE ABLE TO FUNCTION AT A BLOOD ALCOHOL LEVEL OF .34, WHEREAS MOST NON-TOLERANT INDIVIDUALS WOULD PASS OUT OR FALL ASLEEP WITH A LEVEL OF ABOUT .20. DR. JACOBSEN THEN EXPLAINED THAT EVEN THOUGH CLAIMANT COULD FUNCTION AND APPEARED NOT TO DEMONSTRATE SIGNS OF GROSS MOTOR IMPAIRMENT GENERALLY ASSOCIATED WITH INTOXICATION (SLURRED SPEECH, STAGGERING GAIT AND MARKED INCOORDINATION) HE WOULD STILL BE SEVERELY IMPAIRED BY ALCOHOL AT THIS LEVEL. *FN5 DR. JACOBSEN CONCLUDED THAT CLAIMANT WAS SIGNIFICANTLY IMPAIRED BY ALCOHOL AT THE TIME OF HIS INJURY AND THAT USE OF ALCOHOL WAS THE MAJOR CONTRIBUTING CAUSE OF THE ACCIDENT. DR. JACOBSEN ALSO EXPLAINED THAT WITH CLAIMANT'S ADMITTED HISTORY OF DRINKING THE NIGHT BEFORE, SLEEP DEPRIVATION RESULTING FROM THE HEAVY USE OF ALCOHOL COULD BE ANOTHER FACTOR INCREASING HIS LEVEL OF IMPAIRMENT. (EX. 6-4).

THE ALJ DID NOT FIND DR. JACOBSEN'S REPORT PERSUASIVE BECAUSE DR. JACOBSEN BELIEVED THAT AT SUCH A HIGH BLOOD ALCOHOL LEVEL, CLAIMANT WOULD HAVE EMANATED THE SMELL OF ALCOHOL ON HIS BREATH. DR. JACOBSEN'S REPORT DOES NOTE HIS SURPRISE THAT NONE OF CLAIMANT'S CO-WORKERS REPORTED SUCH A SMELL. THE ALJ DETERMINED THAT THE REASON WHY NEITHER DEWITT NOR DAILY SMELLED ALCOHOL ON CLAIMANT'S BREATH WAS BECAUSE THERE WAS NO SUCH ODOR. WE ARE NOT PERSUADED THAT IS WHY NO ODOR WAS DETECTED. RATHER, GIVEN THE FACT CLAIMANT AND HIS CO-WORKERS WERE SURROUNDED BY THE FOUL SMELL OF THE CHICKEN FARM, WE CONSIDER IT UNDERSTANDABLE THAT THEY DID NOT NOTICE AN ALCOHOLIC SMELL EMANATING FROM CLAIMANT EVEN WHEN THEY WERE STANDING OUTSIDE OF THE BARN ADMINISTERING FIRST AID. *FN6

WE ACKNOWLEDGE THAT CO-WORKERS DEWITT AND DAILY REPORTED THAT CLAIMANT DID NOT APPEAR INTOXICATED. WE FURTHER RECOGNIZE THE HOSPITAL CHART NOTE THAT CLAIMANT APPEARED ALERT AND ORIENTED. THESE OBSERVATIONS DO NOT ALTER OUR CONCLUSION THAT CLAIMANT WAS IMPAIRED AT THE TIME OF THE WORK ACCIDENT. IN FACT, WE FIND THE HOSPITAL STAFF'S DETERMINATION THAT CLAIMANT APPEARED ALERT AND ORIENTED UPON HIS ARRIVAL IS CONSISTENT WITH DR. JACOBSEN'S ASSESSMENT THAT CLAIMANT COULD STILL FUNCTION AT SUCH A HIGH BLOOD ALCOHOL LEVEL EVEN THOUGH HIS JUDGMENT AND MUSCULAR COORDINATION WAS SIGNIFICANTLY IMPAIRED.

WE HELD UNDER SIMILAR FACTS IN GRACE L. WALKER , SUPRA, *FN7 THAT THE CAUSE AND EFFECT OF THE USE OF ALCOHOL OR CONTROLLED SUBSTANCES IS A MEDICAL QUESTION REQUIRING COMPETENT MEDICAL EVIDENCE. AS IN WALKER, WE FIND PERSUASIVE THE MEDICAL EXPERT'S CONCLUSION THAT CLAIMANT WAS IMPAIRED AT THE TIME OF HIS ACCIDENT.

WE ALSO CONCLUDE THAT CLAIMANT'S IMPAIRMENT WAS THE MAJOR CAUSE OF THE INJURY. CLAIMANT HIMSELF GAVE VARYING ACCOUNTS OF HOW THE ACCIDENT OCCURRED. HE TOLD THE EMERGENCY ROOM PHYSICIAN THAT WHILE WORKING ON THE LADDER, HE DROPPED SOMETHING AND CAUGHT HIS HAND IN THE FAN AS HE BENT DOWN TO PICK IT UP. (EX. 2). HE TOLD HIS EMPLOYER THAT HE SLIPPED AND LOST HIS BALANCE AS HE WAS PUTTING A SCREW IN. (EX. 7-1). HE TESTIFIED AT HEARING: "I WAS UP ON A LADDER RUNNING SOME PVC PIPE AND DRILLING A BOX, AND I SLIPPED AND LOST MY BALANCE AND MY THUMB WENT IN THE FAN." HE LATER ELABORATED THAT THE SCREW CAME OFF THE DRILL BIT, THE DRILL SLIPPED IN HIS RIGHT HAND AND HIS LEFT HAND CAME UP AND INTO THE FAN. (TR. 12, 21-22).

IN RONALD MARTIN, 47 VAN NATTA 473 (1995), WE DISAGREED WITH THE CLAIMANT'S ARGUMENT THAT A CARRIER COULD NOT PROVE THAT ALCOHOL CONSUMPTION WAS THE MAJOR CAUSE OF THE INJURY WHERE THERE WAS MORE THAN ONE PLAUSIBLE EXPLANATION FOR THE ACCIDENT. THERE, BASED ON THE EMPLOYER'S ASSESSMENT OF HOW THE ACCIDENT OCCURRED, WE HELD THAT THE CLAIMANT'S SKIDDER ACCIDENT WAS ATTRIBUTABLE TO THE CLAIMANT'S ERROR IN JUDGMENT. WE THEN FOUND THAT THE CLAIMANT'S CONSUMPTION OF ALCOHOL AND DRUGS WAS THE CAUSE OF THIS ERROR IN JUDGMENT.

IN RICHARD A. PERRY, 46 VAN NATTA 302 (1994), THE CLAIMANT INJURED HIS HAND WHILE REMOVING A JAMMED PIECE OF WOOD FROM A WOOD PLANER. WE DETERMINED THAT THE CLAIMANT'S CONSUMPTION OF MARIJUANA WAS THE MAJOR CONTRIBUTING CAUSE OF THE INJURY, GIVEN THE FACT THE CLAIMANT WAS FAMILIAR WITH THE OPERATION OF THE MACHINERY. ALTHOUGH THE CLAIMANT ALLEGED HE WAS DISTRACTED BY A CO-WORKER, WE FOUND THE ALLEGED DISTRACTION WAS NOT A PLAUSIBLE EXPLANATION FOR THE ACCIDENT.

IN DUANE A. MENESTRINA, 47 VAN NATTA 694 (APRIL 12, 1995), WE HELD THE CLAIMANT'S CONSUMPTION OF ALCOHOL WAS THE MAJOR CAUSE OF THE CLAIMANT'S ACCIDENT WHERE HE LOST CONTROL OF THE STRADDLE LUMBER CARRIER HE WAS DRIVING WHILE NEGOTIATING AN "S" CURVE. THERE, AS HERE, THE CLAIMANT WAS A CHRONIC DRINKER WITH A HIGH TOLERANCE FOR ALCOHOL, WHO WAS FOUND TO HAVE A BLOOD ALCOHOL LEVEL OF AT LEAST .16 AT THE TIME OF THE ACCIDENT. RELYING ON THE EXPERT MEDICAL OPINION, WE DETERMINED THAT CONSIDERING OTHER POTENTIAL FACTORS SUCH AS THE CARRIER'S LOW TIRE AND THE CLAIMANT'S ALLEGED FATIGUE, THE CLAIMANT'S ALCOHOL IMPAIRMENT WAS THE MAJOR CONTRIBUTING CAUSE OF THE ACCIDENT.

IN THIS CASE, AS NOTED ABOVE, WE FIND BY CLEAR AND CONVINCING EVIDENCE, THAT CLAIMANT WAS ALCOHOL IMPAIRED AT THE TIME OF THE ACCIDENT. WE SIMILARLY FIND, BY CLEAR AND CONVINCING EVIDENCE, THAT CLAIMANT'S ALCOHOL IMPAIRMENT WAS THE MAJOR CAUSE OF THE ACCIDENT. THE WORK CLAIMANT WAS DOING, STANDING ON A LADDER AND INSTALLING ELECTRICAL WIRE AND CONDUIT, INVOLVES SMALL MUSCLE COORDINATION AND BALANCE. HIS DECISION TO WORK DIRECTLY IN FRONT OF AN OPERATING FAN, WHEN THE EMPLOYER'S POLICY DICTATED THAT SUCH EQUIPMENT BE SHUT OFF INVOLVED AN ERROR IN JUDGMENT. BASED ON DR. JACOBSEN'S OPINION THAT CLAIMANT'S JUDGMENT, COORDINATION AND BALANCE WERE IMPAIRED AT THE TIME OF THE ACCIDENT AS A RESULT OF ALCOHOL CONSUMPTION, WE ARE PERSUADED, BY CLEAR AND CONVINCING EVIDENCE THAT CLAIMANT'S ALCOHOL CONSUMPTION WAS THE MAJOR CONTRIBUTING CAUSE OF HIS INJURY. INDEED, LIKE THE CLAIMANT IN PERRY, CLAIMANT WAS PERFORMING A FAMILIAR TASK. HE HAD PERFORMED THE SAME JOB AT THE SAME SITE THE DAY PRIOR WITHOUT INCIDENT, AND HAD PREVIOUS EXPERIENCE PERFORMING THE SAME WORK AT OTHER LOCATIONS. *FN8

WE RECOGNIZE THIS TYPE OF ACCIDENT COULD OCCUR WITH A NON-INTOXICATED WORKER. INDEED, THE ACCIDENTS AT ISSUE IN WALKER (FINGER CAUGHT IN BANDSAW), PERRY (FINGERS CAUGHT IN WOOD PLANER), MARTIN (LOG SKIDDER ROLLED OVER ONTO CLAIMANT) AND MENESTRINA (LUMBER CARRIER TOPPLED OVER ON "S" CURVE) ALSO COULD HAVE OCCURRED IN THE ABSENCE OF THE OPERATOR'S INTOXICATION. *FN9 WE CONCLUDE, HOWEVER, THAT AS IN THE CASES CITED ABOVE, SAIF (AS THE EMPLOYER'S INSURER) HAS ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT CLAIMANT'S CONSUMPTION OF ALCOHOL WAS THE MAJOR CONTRIBUTING CAUSE OF HIS INJURY.

IN SUM, WE FIND SAIF HAS ESTABLISHED THAT CLAIMANT'S INJURY IS NOT COMPENSABLE. CONSEQUENTLY, WE REINSTATE AND UPHOLD ITS DENIAL.

ORDER

THE ALJ'S ORDER DATED NOVEMBER 30, 1994 IS REVERSED. THE SAIF CORPORATION'S DENIAL OF CLAIMANT'S LEFT THUMB INJURY CLAIM REINSTATED AND UPHELD. THE ALJ'S $6,000 Counsel FEE IS ALSO REVERSED.

WORKERS' COMPENSATION BOARD

MARY C. NEIDIG, BOARD CHAIR

G. MARIE TURNER-CHRISTIAN, BOARD MEMBER

DISSENT-BY: BOARD MEMBER HALL DISSENTING.

DISSENT: I DISAGREE WITH THE MAJORITY'S CONCLUSION THAT SAIF HAS CARRIED ITS BURDEN OF PROOF ON THE ISSUE OF CAUSATION AND THUS, RESPECTFULLY DISSENT. AS SET FORTH IN MY DISSENT IN RONALD MARTIN, 47 VAN NATTA 473 (1995), WE CANNOT LET EVIDENCE OF A CLAIMANT'S IMPAIRMENT, EVEN IF OVERWHELMING, COLOR OUR SEPARATE DETERMINATION OF WHETHER THAT IMPAIRMENT WAS THE MAJOR CAUSE OF THE ACCIDENT WHICH RESULTED IN CLAIMANT'S INJURY. BY STATUTE, THE TEST HAS TWO ELEMENTS; IMPAIRMENT AND CAUSATION. BOTH ELEMENTS MUST BE SATISFIED. *FN10

IN THIS CASE, THERE WERE NO EYEWITNESSES TO THE ACCIDENT AND THE ONLY EVIDENCE REGARDING HOW THE INJURY OCCURRED CAME FROM CLAIMANT. I SUBMIT THE MAJORITY ERRS IN RELYING UPON THE OPINION OF DR. JACOBSEN TO FIND THAT THE EMPLOYER/CARRIER CARRIED ITS BURDEN OF PROVING CAUSATION. SEE RONALD MARTIN, SUPRA, DISSENT AT P. 476 (QUESTION OF CAUSATION, HOW THE ACCIDENT HAPPENED, BEYOND SCOPE OF DR.'S EXPERTISE).

THE MAJORITY ALSO RELIES ON GRACE WALKER, 45 VAN NATTA 1273 (1993) AFF MEM 126 OR APP 313 (1994) FOR THE PROPOSITION THAT THE " CAUSE AND EFFECT OF THE USE OF ALCOHOL OR CONTROLLED SUBSTANCES IS A MEDICAL QUESTION REQUIRING COMPETENT MEDICAL EVIDENCE." (MAJORITY OPINION AT P. 6.) I AGREE WITH THAT HOLDING; THE CAUSE AND EFFECTS OF SUBSTANCES IN THE HUMAN BODY IS A MEDICAL QUESTION. A QUALIFIED MEDICAL EXPERT MAY CERTAINLY OFFER TESTIMONY OF THE FUNCTIONAL IMPAIRMENT RESULTING FROM CONSUMPTION OF SUBSTANCES. HOW A PIECE OF MACHINERY OPERATES (OR IS OPERATED) AND OTHER SUCH NON-MEDICAL ISSUES SURROUNDING THE "CAUSE" OF AN ACCIDENT ARE NOT, HOWEVER, WITHIN THE QUALIFICATIONS OF A MEDICAL EXPERT. THE MAJORITY NOTES WALKER, SUPRA, FOR RELIANCE ON THE MEDICAL EXPERT (MAJORITY OPINION, P. 6, FN. 7). IT SHOULD BE NOTED, HOWEVER, THAT THERE WAS ANOTHER EXPERT INVOLVED IN WALKER, A MECHANICAL ENGINEER (HENRY EDEL). INDEED, IN WALKER, THE BOARD MAJORITY STATED:

"IN LIGHT OF THE SAFETY FEATURES ON THE MACHINE, MR. EDEL'S EXPLANATION OF THE PROPER METHOD FOR SAFE OPERATION OF THE SAW, AND DR. JACOBSEN'S OPINION REGARDING THE TOXIC EFFECTS OF CLAIMANT'S DRUG USE, WE ARE PERSUADED BY CLEAR AND CONVINCING EVIDENCE THAT CLAIMANT'S CONSUMPTION OF THE CONTROLLED SUBSTANCES WAS THE MAJOR CONTRIBUTING CAUSE OF HER INJURY. THEREFORE, THE INSURER HAS ESTABLISHED THAT THE INJURY IS NOT COMPENSABLE." (45 VAN NATTA AT 1275)

THE PURPOSE OF THIS DISSENT IS NOT TO REGISTER DISAGREEMENT WITH THE MAJORITY'S FACTUAL DETERMINATIONS. THE PURPOSE IS TO ACKNOWLEDGE THE TWO SEPARATE STATUTORY ELEMENTS INVOLVED (IMPAIRMENT AND CAUSATION) AND THE NEED FOR PROPER EVIDENCE ON EACH ELEMENT.

NELSON R. HALL, BOARD MEMBER