Intoxication Defense Upheld by Circuit Court

In an order entered on August 18, 2006, the Honorable Judge Bonnie Wheaton of the Circuit Court of DuPage County, Illinois, affirmed the Illinois Workers' Compensation Commission's denial of benefits to the petitioner. Judge Wheaton found that there was sufficient evidence to uphold the Commission's finding that the petitioner's intoxication was the cause of his work incident. As a result, the petitioner failed to prove that he sustained an accident which arose out of and in the course of his employment.

In Dan Rogers vs. Gibson Electric, the petitioner alleged that he sustained fractures to both ankles as a result of a work-related incident. The incident occurred on a Monday morning, approximately 45 minutes after the petitioner started work. On the morning of the incident he had moved five pieces of switch gear by using a pallet jack. Each piece of switch gear was estimated to be eight to nine feet tall and weighed 875 pounds. Mr. Rogers moved the first five pieces of equipment without incident. As he was moving a sixth piece of equipment, he noticed an electrical cord was on the floor in his path. After seeing the electrical cord, he “spun the pallet jack around” and then bent down to pick up the electrical cord with the intention of throwing it over the switch gear. As he did so he saw the switch gear falling toward him. He attempted to catch the switch gear and sustained fractures to both ankles.

The petitioner was taken to the emergency room and was given a drug test. He tested positive for the presence of cocaine metabolites in his system. The petitioner admitted at trial that for approximately twelve hours, from Friday afternoon to the Saturday morning before the incident, he had smoked approximately one gram of cocaine.

Andrew Makauskas of Brady, Connolly & Masuda, P.C. represented Gibson Electric in this matter. Mr. Makauskas retained a board certified toxicologist to assess the matter. The toxicologist testified as to the effects of cocaine on an individual. He explained that initially the individual experiences a high during the “peak plasma period.” However, after this phase, the cocaine begins to move throughout the body causing cognitive impairment. Specifically, the individual experiences decreased awareness, risk assessment and has impaired judgment. An analogy was made to a drunk driver. On many occasions a drunk driver is able to arrive home safely. However, in circumstances where there is a sudden change requiring a quick response, the drunk driver is unable to react appropriately. Individuals who have ingested cocaine experience a similar difficulty. In this particular case, the toxicologist noted the large amount of cocaine that the petitioner admitted to smoking. He testified that even though this ingestion occurred approximately 48 hours before the time of the alleged incident, the petitioner still would have been intoxicated. He testified that the petitioner's diminished awareness and risk assessment skills, exhibited by spinning the pallet jack, bending in front of the switch gear without seeing if it was stable and then trying to catch the switch gear, were the cause of the incident.

This case was distinguishable from many of the published intoxication cases in that there was medical testimony stating that the petitioner was intoxicated and that the intoxication was the cause of the incident.