The opinion of the court was delivered by: Judge Pellegrini
Submitted: March 12, 2010
BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JAMES R. KELLEY, Senior judge.
Thomas Lindstrom Co., Inc. (Employer) appeals from an order of the Workers' Compensation Appeal Board (Board) vacating the portion of the Workers' Compensation Judge's (WCJ) decision denying the Claim Petition of John Braun (Claimant) under Section 301(a) of the Workers' Compensation Act (Act)*fn1 because Employer successfully presented an intoxication defense. Claimant appeals the portion of the order of the Board affirming the decision of the WCJ to deny his petition for reinstatement of benefits because the Notice of Temporary Compensation Payable (NTCP) did not convert into a Notice of Compensation Payable (NCP).
This case has a long, complicated procedural history. On November 29, 2002, Claimant was working for Employer as an ironworker. He was standing on a six to eight-inch-wide girder attempting to guide a steel beam into place when he overreached and fell, landing on a concrete slab approximately 25 feet below. Claimant landed predominantly on his head and sustained multiple injuries, including severe head trauma and loss of function in his arms and legs. He filed a Claim Petition seeking payment for ongoing full disability, medical bills, counsel fees, specific loss, and disfigurement. Employer filed an Answer denying all material allegations. Employer issued Claimant an NTCP on December 17, 2002, according to which Claimant was to receive biweekly payments of $662 beginning on November 30, 2002. A Notice of Workers' Compensation Denial (NCD) was issued to Claimant on February 21, 2003, stating his claim was denied for other good cause. Specifically, Employer's investigation showed Claimant was under the influence of an excessive amount of alcohol at the time of the injury. Claimant then filed a Petition to Reinstate Compensation Benefits alleging Employer failed to send Notice Stopping Temporary Compensation Payable (NSTCP) within five days after the date of last payment in violation of Section 406.1 of the Act.*fn2
Before proceeding to a hearing, the parties entered a Stipulation of Facts in which they stipulated that a falling incident occurred on November 29, 2002; Claimant sustained a work-related injury; an employment relationship existed; and the incident occurred within the course and scope of Claimant's employment. The parties also stipulated to the issuance and dates of the NTCP, NSTCP, and NCD. Therefore, the only remaining issues to be resolved were Employer's intoxication defense and whether Claimant was entitled to a reinstatement of benefits because Employer did not send the required notice within five days of ceasing to make temporary compensation payments as required by Section 406.1 of the Act.
Before the WCJ, Employer presented the deposition testimony of John Shane, M.D. (Dr. Shane), a physician board certified in clinical and anatomical pathology as well as chemistry and toxicology. Dr. Shane stated that Employer's insurer requested that he review Claimant's records from Frankford Hospital, from his admission on November 29, 2002, throughout his extensive treatment and hospitalization. According to these records, Claimant's accident occurred approximately 45 minutes after he returned from his lunch break. Claimant was attempting to guide a steel beam into place when he overreached and fell approximately 25 feet onto a concrete pad. Claimant was unresponsive after the accident and had to be intubated. The records indicated that Claimant suffered numerous injuries as a result of this fall, including the following: a vascular skull fracture to the base of the skull; right orbital fracture; multiple cerebral contusions; intraventricular hemorrhage; contusions to his lungs; and fractures of his maxillary sinus, first rib, right distal radius, and left metacarpals.
Claimant's records indicate that upon arrival at Frankford Hospital at 1:44 p.m., he had alcohol on his breath and the admitting physician noted that he had a problem with alcohol and substance abuse; therefore, alcohol and substance abuse screening was immediately requested. A blood specimen was drawn at 2:02 p.m. which indicated a serum ethanol level of 321 milligrams per deciliter. Dr. Shane calculated these results to mean that Claimant's whole blood alcohol level when the sample was taken was .23 to .29% with an average of .27%, and at the time of the fall it would have been slightly higher, approximately .28%. Dr. Shane testified that this level of blood alcohol would produce the following physical impairments: slowed responses; some slurring of speech; grossly impaired fine motor movements; impaired gross motor movements with some early staggering; loss of reflexes; loss of caution; 80 to 90% loss of peripheral vision; 70% loss of hearing; loss of deductive reasoning skills; loss of focus; and an extremely short attention span. Dr. Shane concluded that at the time of Claimant's accident, he was "a very, very significantly alcohol intoxication disabled person." When asked to give his opinion, with a reasonable degree of medical or toxicological certainty, as to the causal relation of the alcohol in Claimant's bloodstream and his fall, Dr. Shane stated that "without question, that this person was severely intoxicated by alcohol and that level of alcohol was a major and very substantial contributing factor to his unfortunate accident." (R. at 39a).
Dr. Shane testified that Frankford Hospital's laboratory was licensed as a blood alcohol testing laboratory by the Commonwealth, fully approved and accredited by the College of American Pathologists, and that it had the highest levels of reliability of testing, quality assurance testing, and regulatory certification possible.
Employer also submitted the written report of Dr. Shane in which he stated that at the time of the accident, Claimant had a minimum of 12 ounce equivalents of alcohol in his system, which would equal 12, 12-ounce beers or 12 ounces of 86 proof spirits. Given these levels, Dr. Shane concluded that Claimant's "impairments and in particular his profound gross motor movement disability; loss of balance; loss of caution; loss of reasoning; loss of peripheral vision; his obtundation and essentially absent attention span were the disabilities that caused this accident. John Braun was severely and heavily intoxicated. . . . Catastrophe was a certainty in attempting to perform the job function described (or any construction job function) with his enormous alcohol burden." (R. at 129a-130a) (emphasis added).
Due to his condition Claimant was unable to testify before the WCJ. However, he presented the deposition testimony of Lee M. Blum, Ph.D. (Mr. Blum), a board certified forensic toxicologist and assistant laboratory director. Mr. Blum testified that he reviewed copies of laboratory reports and emergency room records regarding Claimant's admission to Frankford Hospital, as well as the report and deposition of Dr. Shane. From his review of these materials, Mr. Blum determined that Claimant began work on November 29, 2002, at 7 a.m. and went to a local restaurant for lunch from 12:00 to 12:30 p.m. Shortly after 1:00 p.m., Claimant fell approximately 25 feet to the ground. Claimant arrived at the emergency room at Frankford Hospital at 1:44 p.m. and at approximately 2:00 p.m. alcohol and urine toxicology testing was requested because Claimant had the smell of alcohol on his breath. Claimant's urine toxicology screen was positive for marijuana and barbiturates*fn3 and his laboratory report indicated a blood alcohol of 321 milligrams per deciliter.
Mr. Blum also testified at length as to the appropriate process in the Commonwealth for taking blood samples in order to make a determination of blood alcohol levels.*fn4 He testified that nothing in the documents he reviewed indicated the training of the person who drew Claimant's blood sample, whether the proper procedures were followed when Claimant's blood sample was obtained and tested, whether the integrity of the specimen was maintained, whether an approved method of testing was utilized, and the chain of custody of the sample was not provided. Mr. Blum testified that the laboratory results indicated the blood alcohol test was "considered as a presumptive positive" and that no secondary test was completed to determine whether the substance was in fact ethyl alcohol.
Based upon all of this information, he concluded that the test for ethyl alcohol performed on Claimant did not meet the standards of practice in the Commonwealth or the necessary degree of scientific certainty required for forensic purposes.
Claimant also presented the live testimony of Robert Hendrickson (Mr. Hendrickson). Mr. Hendrickson was working as a crane operator on the same crew as Claimant on the day of the accident. He testified that he observed Claimant standing and walking along a long span, which was approximately six to eight inches wide, for approximately half an hour prior to his fall and that during this time Claimant did not stagger, sway, or lose his balance. According to Mr. Hendrickson, Claimant was able to secure three or four beams prior to his fall. On cross-examination, Mr. Hendrickson admitted that he was a friend of Claimant's ...