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Desert Valley Construction and Employers Insurance Co. of Nevada v. Hurley9/2/2004
Desert Valley Construction and Employers Insurance Company of Nevada (EICN) appeal from an order denying their petition for judicial review of a workers' compensation award in favor of respondent Keith Hurley. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Hurley was injured at work when he fell from a scaffold. His employer, Desert Valley, provided workers' compensation insurance through EICN. EICN denied Hurley's claim for workers' compensation benefits based upon testing that revealed 747 ng/mL of marijuana metabolite, THC carboxylic acid, in Hurley's post-accident urine sample. A hearing officer upheld the denial of benefits under NRS 616C.230(1)(d), which prohibits compensation for workplace injuries proximately caused by the employee's use of a controlled substance. This statute also provides that the presence of a controlled substance in a worker's system at the time of a workplace injury gives rise to a rebuttable presumption that the controlled substance was a proximate cause of the injury. Hurley appealed the hearing officer's decision to an administrative appeals officer.
Rather than contest before the appeals officer whether NRS 616C.230(1)(d) applied to his claim, Hurley attempted to rebut the presumption that the controlled substance in his system was a proximate cause of his injuries. His theory was that the scaffold rolled into a hole in the floor of the construction site, due to either a defective braking mechanism or his own normal miscalculations, causing the scaffold to turn over on its side.
Although Hurley testified that he believed the scaffold rolled into the hole, he was unsure as to how or why this occurred. A co-worker testified that before the accident, the scaffold was positioned approximately six inches from the edge of the hole with the brakes locked. As he turned to walk away, he heard the scaffold fall. This witness observed one corner of the scaffold in the hole after the accident; however, he could not state how the scaffold moved from its preaccident position, as the brakes on the scaffold remained locked. Other Desert Valley employees confirmed the presence of the scaffold in the hole after the accident and that its wheels were locked.
None of the witnesses at the hearing actually observed Hurley fall from the scaffold. However, witnesses indicated that an employee of another contractor, "Tim the plumber" (Timothy Griswold), observed the accident. Hurley was unaware of this witness prior to the hearing.
None of the percipient witnesses testified at the hearing concerning Hurley's state of intoxication, or lack thereof, on the day of the accident. However, Dr. Raymond Kelly testified on behalf of EICN concerning the significance of marijuana metabolite levels in excess of 100 ng/mL in urine. Although conceding that the THC metabolite does not of itself cause impairment, he offered his opinion that the laboratory findings in this case inferentially supported the notion that Hurley was impaired at the time of the test; i.e., levels in excess of 100 ng/mL in urine, more likely than not, correlate to the presence of active THC in blood, which could cause impairment.
In her initial ruling, the appeals officer rejected Hurley's evidence that the scaffold rolled into the hole with its wheels locked and thus, concluded that Hurley "failed to present credible evidence that the accident was caused by anything other than his intoxication which is presumed by operation of NRS 616C.230(1)(d)." Accordingly, the appeals officer denied Hurley's claim for workers' compensation benefits. Hurley petitioned the district court for review of this conclusion.
Ultimately, Hurley secured an affi
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