Workers' Compensation

Proud Mary Rocks New Year’s Eve…..and the Intoxication Defense is Upheld in Delaware

Harken back to my post of 4/14/15- “Section 2353 Extravaganza….”.  That was the Roger Johnson v. R.C. Fabricators case which dealt with a Section 2353(b) forfeiture defense by virtue of intoxication, involving an injured worker with a fondness for both cannabis and cocaine.  Surely you remember it?  You know - the guy who had such a drug problem that he kept a bag of someone else’s urine strapped to the inside of his calf?  To pass the employer’s random drug testing.  Yes, that guy.  And one of those rare gems of a case where the intoxication forfeiture defense (19 Del. Code Section 2353(b)) prevails.

Winning the chutzpah award for legal maneuvers, the injured worker appeals the Board’s denial of benefits to the Superior Court and that prompted the pleasure of being contacted by Cheryl Ward, the defense counsel on the case, for whom Christmas came early:

Update on my intoxication case, Superior Court affirmed the Board Decision.  Roger Johnson v. RC Fabricators.

The Superior Court found Dr. Hameli (who because of his education, training and experience gained from 60,000 cases and 12,000 autopsies) was qualified as an expert. His testimony showed the employee was intoxicated and the intoxication was the proximate cause of the accident.   I think most important thing to learn from this case is that you need a medical expert to testify as to intoxication and if you want to challenge the intoxication, you should get your own expert.

Merry Christmas!

The case is Roger Johnson v. R.C. Fabricators, Del. Super., CA No. S15A-05-001-RFS (12/22/15).

I really like this case.  Of note, the injured iron worker argued that he fell because the rebar hook slipped. He denied being impaired and a number of his co-workers testified on his behalf that he did not give the appearance of being impaired. The case contains a compendium of references to other cases dealing with the intoxication defense and that is always special, much the same way that a religious article annotated with Scripture always brings a wealth of extra wisdom to the table.  And I know I digress….but if there any more secular wisdom than the case law?  Not in my book.

Anyway, returning to the case at hand, the Court took cognizance of Dr. Hameli’s specializing training and impressive credentials.  And in the absence of contrary medical evidence to support the claimant’s denial of being impaired, what’s a Court to do?

In this case, the right thing.

And if Mr. Johnson wants to join the recovery community, I can point him in the right direction.

Happy New Year, dear friends!

Irreverently yours,

 

 

 Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts

 

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