Mmj Masonry, Inc. v. Ruben Guerrero Silva

• Court: Court of Appeals of Kentucky
• Decided: September 19, 2025
• Docket: 2025-CA-0164
• Status: Unpublished

Opinion

RENDERED: SEPTEMBER 19, 2025; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0164-WC

MMJ MASONRY, INC. APPELLANT

PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-19-51241

RUBEN GUERRERO SILVA; HONORABLE JONATHAN WEATHERBY, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: A. JONES, L. JONES, AND KAREM, JUDGES.

KAREM, JUDGE: Appellant, MMJ Masonry, Inc., appeals from an opinion of the

Workers’ Compensation Board (the “Board”) affirming the Administrative Law

Judge’s (“ALJ”) determination that Ruben Guerrero Silva’s (“Silva”) injury

occurred within the course and scope of his employment, his claim was not barred by Kentucky Revised Statute (“KRS”) 342.610(4), and his ultimate award of

permanent total disability benefits and medical benefits. Upon our review, we

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Silva filed a Form 101 on February 19, 2020, alleging that he had

sustained work-related injuries to his spinal cord on December 12, 2019, in the

following manner: “Fell 20 feet from scaffolding onto a pile of bricks. Suffered

multiple fractures and a spinal cord injury. Client is paralyzed.”

MMJ claimed that Silva had been voluntarily intoxicated at the time

of the alleged work injury based on blood test results revealing a blood alcohol

content of 0.206 and argued that KRS 342.610(4) was a bar to the action. MMJ

provided Silva’s blood test results, which were dated December 12, 2019, and

collected shortly after he arrived at the hospital. Those test results did show

Silva’s plasma alcohol level to be 0.206. Additionally, MMJ introduced evidence

that, at the time of the accident, Silva’s driver’s license had been suspended for

three years due to speeding and DUI convictions, and he had been incarcerated for

three months. Alternatively, Silva testified that he had not been drinking alcohol

on the day of the accident. He claimed to have only had four beers the day before

his accident.

-2- In an order dated October 19, 2020, the ALJ granted MMJ’s motion to

bifurcate to allow the ALJ to make an initial determination regarding the

affirmative defense of voluntary intoxication. Thereafter, in a June 29, 2021,

interlocutory opinion and order, the ALJ determined Silva’s claim was not barred

by KRS 342.610(4) and that the work accident occurred within the course and

scope of his employment with MMJ. Additionally, the ALJ overruled MMJ’s

petition for reconsideration in a July 29, 2021, order.

Thereafter, in an opinion and order entered on July 3, 2024, the ALJ

determined, based on the medical evidence, that Silva had sustained a 93% whole

person impairment due to the work injury, which had rendered him unable to

perform any type of work for remuneration. Thus, the ALJ found that Silva had

been rendered permanently and totally disabled by the work injury and awarded

Silva $200.01 per week for 100% permanent disability commencing on December

12, 2019. The ALJ ordered that the benefits would terminate pursuant to KRS

342.730(4) as of the date Silva reached seventy years of age.

MMJ appealed to the Workers’ Compensation Board, arguing that the

ALJ erred by failing to find that Silva was acting outside the course and scope of

his employment at the time of his accident by choosing to work while under the

influence of alcohol. MMJ further argued that the ALJ erred by failing to find that

Silva’s claim was barred by KRS 342.610(4). Specifically, the Board found

-3- nothing ambiguous within the language of KRS 342.610(4). Thus, the Board

determined that it must interpret the statutory language to create a presumption

pertaining only to illegal substances or the overuse of legally prescribed

substances. This appeal followed.

We will discuss further facts as they become relevant.

ANALYSIS

We first note that the Clerk of our Court returned the appellees’ brief

in March 2025 because they failed to tender it within the prescribed time limit.

The Clerk noted that the appellees could resubmit the document with a motion for

additional time to file the document, which the appellees failed to do.

Thus, because the appellees did not file a brief, we may “(a) accept

the appellant’s statement of the facts and issues as correct; (b) reverse the judgment

if [the] appellant’s brief reasonably appears to sustain such action; or (c) regard the

appellee[s’] failure as a confession of error and reverse the judgment without

considering the merits of the case.” Kentucky Rule of Appellate Procedure

(“RAP”) 31(H)(3). “The decision as to how to proceed in imposing such penalties

is a matter committed to our discretion.” Roberts v. Bucci, 218 S.W.3d 395, 396

(Ky. App. 2007) (citations omitted). In this case, we decline to reverse the

judgment without an independent review of the record and consideration of the

merits of the case.

-4- 1. Standard of Review

The burden of proof for any affirmative defense in a workers’

compensation case rests with the employer. Whittaker v. Hardin, 32 S.W.3d 497,

499 (Ky. 2000). To sustain that burden, an employer is required to set forth

substantial evidence, defined as “evidence of substance and relevant consequence

having the fitness to induce conviction in the minds of reasonable men.” Smyzer v.

B.F. Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky. 1971). Because MMJ

was unsuccessful in sustaining its burden, the question on appeal is whether the

evidence compels a different result. Wolf Creek Collieries v. Crum, 673 S.W.2d

735, 736 (Ky. App. 1984). “Compelling evidence” is defined as evidence so

overwhelming that no reasonable person could reach the same conclusion as the

ALJ. Id.

An appellate court reviews questions of law and the application of law

to facts under the de novo standard. Bowerman v. Black Equipment Co., 297

S.W.3d 858, 866 (Ky. App. 2009). As to questions of fact, the standard of review

is whether the finding was “clearly erroneous,” meaning “unreasonable under the

evidence presented.” Letcher Cnty. Bd. of Educ. v. Hall, 576 S.W.3d 123, 126

(Ky. 2019).

-5- 2. Discussion

On appeal, MMJ argues that (1) Silva’s alcohol intoxication at the

time of his injury took him outside the course and scope of his employment, such

that his claim was not compensable and (2) Silva’s consumption of alcohol in

violation of KRS 222.202 made the alcohol an “illegal” substance such that MMJ

was entitled to the presumption set forth in KRS 342.610(4).

In this case, the ALJ was correct in finding that Silva was acting

within the course and scope of his employment at the time of his fall. “KRS

342.0011(1) requires a compensable injury to arise out of and in the course of the

injured worker’s employment.” Clark County Bd. of Educ. v. Jacobs, 278 S.W.3d

140, 143 (Ky. 2009). Indeed, “injury” is defined under Kentucky law as “any

work-related traumatic event or series of traumatic events, including cumulative

trauma, arising out of and in the course of employment which is the proximate

cause producing a harmful change in the human organism evidenced by objective

medical findings.” KRS 342.0011(1). Thus, “[a]n injury occurs in the course of

an employment if it takes place during the employment, at a place where the

employee may reasonably be, and while the employee is working or otherwise

serving the employer’s interests.” Jacobs, 278 S.W.3d at 143 (citation omitted).

Here, Silva was clearly working within the scope and course of his

employment. Silva’s supervisor, who was the brother-in-law of MMJ’s owner,

-6- drove Silva to the work site and had direct supervision and control over Silva and

his work activities. Moreover, at the time of his injury, Silva was climbing or

walking on a scaffold to complete work on MMJ’s behalf.

Further, MMJ’s reliance on the holding in Roach v. Wilson is

misplaced. 551 S.W.3d 450 (Ky. App. 2017). In Roach, the Court of Appeals

determined Roach was acting outside the course and scope of her employment as a

school bus driver when she was involved in an accident while under the influence

of Prozac, Klonopin, and Lortab. Id. at 452.

However, at the time that the Court decided Roach, KRS 342.610(3)

read as follows: “Liability for compensation shall not apply where injury . . . to the

employee was proximately caused primarily by voluntary intoxication as defined

in KRS 501.010[.]” KRS 501.010(2) defined “intoxication” as “a disturbance of

mental or physical capacities resulting from the introduction of substances into the

body.” Moreover, KRS 501.010(4) defined “voluntary intoxication” as

“intoxication caused by substances which the defendant knowingly introduces into

his body, the tendency of which to cause intoxication he knows or ought to know,

unless he introduces them pursuant to medical advice or under such duress as

would afford a defense to a charge of crime.”

Since the passage of House Bill 2 in 2018, “voluntary intoxication” is

defined in KRS 342.610(4), which removed all references to KRS 501.010 and

-7- reads as follows: “If an employee voluntarily introduced an illegal, nonprescribed

substance or substances or a prescribed substance or substances in amounts in

excess of prescribed amounts into his or her body detected in the blood, as

measured by a scientifically reliable test, that could cause a disturbance of mental

or physical capacities, it shall be presumed that the illegal, nonprescribed substance

or substances or the prescribed substance or substances in amounts in excess of

prescribed amounts caused the injury, occupational disease, or death of the

employee and liability for compensation shall not apply to the injury, occupational

disease, or death to the employee.” (Emphasis added.)

Therefore, under the statutory language of KRS 342.610(4) in effect at

the time of Silva’s injury, “voluntary intoxication” encompasses only “illegal,

nonprescribed substance or substances” or “prescribed substance or substances in

amounts in excess of prescribed amounts[.]” As alcohol is neither a prescribed nor

an illegal substance, it does not fit within the purview of KRS 342.610(4).

“[W]here a statute is amended or re-enacted in different language, it will not be

presumed that the difference between the two statutes was due to oversight or

inadvertence on the part of the Legislature. On the contrary, it will be presumed

that the language was intentionally changed for the purpose of effecting a change

in the law itself.” City of Somerset v. Bell, 156 S.W.3d 321, 326 (Ky. App. 2005)

(quoting Eversole v. Eversole, 185 S.W. 487, 489 (Ky. 1916)). Thus, Roach is

-8- inapposite to this situation, and we affirm the ALJ’s determination that Silva was

acting within the course and scope of his employment.

MMJ next argues that the Board erred in failing to find that Silva’s

claim was barred due to his voluntary intoxication pursuant to KRS 342.610(4).

The Board affirmed the ALJ’s determination that, because alcohol is not an

“illegal” or “prescribed” substance as required under the amended version of KRS

342.610(4), the statute did not apply to this situation. We agree.

MMJ argues that the statute applies because Silva’s alcohol

intoxication was illegal per KRS 222.202, which states that “[a] person is guilty of

alcohol intoxication when he appears in a public place manifestly under the

influence of alcohol to the degree that he may endanger himself or other persons or

property, or unreasonably annoy persons in his vicinity.”

However, while this statute may render public intoxication a criminal

offense, the statute does not render alcohol an illegal substance. The fact remains

that no provision within KRS 342.610 addresses intoxication through the

consumption of alcohol. Once again, KRS 342.610(4) requires an “illegal,

nonprescribed substance or substances” or a “prescribed substance or substances in

amounts in excess of prescribed amounts” before the voluntary intoxication

defense is available. Therefore, we affirm the ALJ as to this issue.

-9- CONCLUSION

For the foregoing reasons, we affirm the Board’s opinion affirming

the ALJ’s opinions and orders.

JONES, L., JUDGE, CONCURS.

JONES, A., JUDGE, CONCURS AND FILES SEPARATE OPINION.

JONES, A., JUDGE, CONCURRING: I concur in the Court’s Opinion. I write

separately to suggest that the General Assembly may wish to reexamine its most

recent revision of KRS 342.610(4) in light of the outcome of this case. As written,

the statute excludes alcohol intoxication from its reach, even when—as here—an

employee reports to work in a severely impaired condition and suffers injury as a

result.

The General Assembly’s 2018 amendment to KRS 342.610(4)

eliminated the broader “voluntary intoxication” bar and replaced it with language

limited to “illegal, nonprescribed substance[s]” or “prescribed substance[s] . . . in

amounts in excess of prescribed amounts.” Alcohol is neither. Thus, under the

current statutory text, the ALJ and the Board correctly determined that the defense

is unavailable to the employer.

I note, however, that under the prior statutory scheme, which

encompassed voluntary intoxication, the employer’s defense likely would have

prevailed. And for good reason: when an employee appears for work in a severely

-10- compromised state, climbs scaffolding while intoxicated, and is injured as a result,

common sense suggests that workers’ compensation should not reward such

recklessness.

The temptation is to strain the current statutory text to reach that

outcome. But doing so would be rewriting, not interpreting. The language says

what it says, and our role is to apply it. If the result here is unsatisfactory as a

matter of policy, the remedy lies not with the courts but with the General

Assembly.

I therefore respectfully urge the legislature to consider whether the

current statutory formulation adequately addresses workplace injuries caused by

alcohol intoxication, or whether a return to the prior “voluntary intoxication”

standard is warranted.

BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.

Morgan J. Fitzhugh Lexington, Kentucky

-11-