IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eric Coley, :

Petitioner :

:

v. : No. 2058 C.D. 2016

: Submitted: April 6, 2018

Workers’ Compensation Appeal :

Board (Illusionz of Greenville, :

LLC and Uninsured Employers’ :

Guarantee Fund), :

Respondents :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE PELLEGRINI FILED: May 3, 2018

Eric Coley (Claimant) petitions for review of the Workers’ 

Compensation Appeal Board’s (Board) order that reversed the Workers’ 

Compensation Judge’s (WCJ) decision granting benefits to Claimant pursuant to 

Section 301(a) of the Workers’ Compensation Act (Act)1 because his injuries 

occurred as a result of his intoxication.2

 

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 431. Section 301(a) of the Act 

provides, in pertinent part, “In cases where the injury or death is caused by intoxication, no 

compensation shall be paid if the injury or death would not have occurred but for the employe’s 

intoxication, but the burden of proof of such fact shall be upon the employer.” 77 P.S. § 431.

2 Claimant also appealed to the Board, contending that: (1) there was no credible 

evidence that he was intoxicated; (2) his conduct did not give rise to the confrontation; (3) he 

(Footnote continued on next page...)
2

I.

Claimant was employed by Illusionz of Greenville, LLC (Employer) 

as a club disk jockey (DJ). On April 19, 2013, he filed a claim petition alleging

that on March 16, 2013, he suffered work-related injuries in the nature of a broken 

right ankle and broken right fibula as the result of a slip and fall following a 

disagreement with a fellow employee. Claimant sought workers’ compensation 

benefits beginning March 16, 2013, as well as the payment of medical expenses 

resulting from the incident. Because Employer did not have workers’ 

compensation insurance in effect on the date of injury, the Uninsured Employers’ 

Guarantee Fund (Fund) filed an Answer denying all material averments and 

alleging that Claimant was precluded from receiving benefits because his injuries 

were the result of his intoxication.

A.

Before the WCJ, Claimant testified that he worked for Employer as a 

DJ Wednesdays through Fridays from 10:00 p.m. until 2:00 a.m. and that his duties 

were maintaining the computer, playing music, and cleaning at the end of the 

night. Although only paid until 2:00 a.m., Claimant was required to clean the club 

at the end of the night with other staff. This took between one-half hour and onehour-and-a-half.

 

(continued...)

was not able to return to full duty as of July 23, 2013; and (4) he was entitled to unreasonable 

contest fees. The Board dismissed Claimant’s appeal as untimely and Claimant does not 

challenge that determination on appeal to this Court.
3

Claimant testified that on March 16, 2013, between 2:30 a.m. and 

3:00 a.m., he complained to both Employer’s owner and manager that the bouncers 

were not cleaning properly. That led to a verbal and physical altercation with one 

of the bouncers, who pushed him twice. While attempting to turn and walk away 

from the bouncer, Claimant stated that he slipped and fell on the wet dance floor

resulting in his broken right ankle and broken right fibula, for which he was taken 

to the hospital by ambulance. Claimant was certain that the dance floor was wet 

because he had mopped it.

Regarding his alleged intoxication, Claimant testified that over his 

four-hour shift, he had three to four “Jack and Cokes,” each of which had one shot

of Jack Daniels in a 16-ounce glass with no ice. He denied that he was intoxicated 

when he was injured.

The records from the ambulance service indicate that Claimant “was 

involved in an altercation with another bouncer at the establishment. During the

altercation, [he] fell and twisted his right ankle. . . . [Claimant] admitted to 

consuming five to six ‘Jack in Cokes’ prior to the event.” (Certified Record (C.R.)

Item No. 43, C-8-2 Itemized Records of Life Force.) The trip sheet further 

indicates, “[Claimant] was alert and oriented, [he] was intoxicated however he still 

was sound [of] mind and answered all questions appropriately.” (Id.)

UPMC Horizon Emergency Room records indicate under the heading 

“context” that Claimant had a fall and a twist “[w]hile in a bar fight.” (C.R. Item 
4

No. 28, C-09 Medical records of UPMC-Horizon.) Under “Clinical Impression,” it 

states “ETOH Intoxication.” (Id.)

The transcript from the 911 call that was admitted into evidence states 

that the incident took place because of a bar fight and all parties had been drinking. 

A deposition was taken of Officer Wesley P. Carson (Officer Carson), who 

testified that he and the other responding officers on the scene were told by staff 

that Claimant became enraged and was heavily drinking. When confronted by the 

officers, Claimant would not make a statement.

Claimant also offered the deposition transcript of Stuart D. Anderson, 

M.D. (Dr. Anderson). As pertinent, Dr. Anderson testified that Claimant suffered 

a fracture/dislocation of his right ankle as well as his proximal fibula. He opined 

that within a reasonable degree of medical certainty, Claimant’s injuries were 

caused by “[t]he altercation while he was at work.” (C.R. Item No. 37, C-18 

Deposition Testimony of Stuart Anderson, M.D. at 11.)

B.

Employer presented the testimony of Shawn Knauf (Knauf), who 

testified that he is the sole owner, operator and president of Employer and that on 

March 16, 2013, Employer employed two bouncers, a DJ, and three bartenders at 

the bar. While Claimant was permitted to leave at 2:00 a.m., Knauf claimed that 

Claimant remained at the site because he was waiting for his girlfriend to finish her 

shift and cleaning.
5

As to the verbal and physical altercation between Claimant and the 

bouncer, Knauf stated that took place when Claimant came out from the DJ booth 

yelling about the bouncers not doing their jobs, after which one of the bouncers

confronted him. Knauf stated that Claimant was highly intoxicated, very 

belligerent and vulgar, yelling and screaming and swearing at everyone, and stating 

that the bouncers were not doing their jobs.

Knauf stated that he saw Claimant start drinking heavily over the

course of several months before the incident and that he had witnessed the 

bartenders pouring double shots for Claimant that night so that Claimant’s drinks 

were about two-and-one-half shots in a 16-ounce glass. Notwithstanding, he did 

not suspect that Claimant was overly intoxicated on the night of the incident until 

he began screaming, yelling and acting belligerently.

Knauf further testified that he saw Claimant and the bouncer lock up 

and saw Claimant going to the floor with the bouncer almost landing on top of 

him. He denied that the dance floor was wet because nobody had started cleaning 

yet. Knauf discharged Claimant and the bouncer that evening.

Kaitlyn Frederick (Frederick), a bartender who was dating Claimant at 

the time of the incident, testified that she was behind the bar cleaning when she 

heard a verbal exchange between Claimant and the bouncer, but she did not see 

how Claimant was injured. She stated that, to her knowledge, there had not been 

any issues during the evening between Claimant and the bouncer and there were no 

issues between them on any other occasion. Regarding Claimant’s intoxication, 
6

Frederick testified that she served Claimant two “Jack and Cokes” on the night of 

the injury, with one shot of Jack Daniels in each. She explained that bartenders 

and bouncers are not allowed to consume alcohol while working, but that the DJ –

i.e., Claimant – was allowed to do so and he normally had about three to four 

drinks a night. Based on her observations, Frederick testified that neither Claimant 

nor the bouncer was intoxicated.

Jessica Ohl (Ohl), a bartender for Employer, testified that she had 

known Claimant for about two years. She stated that Claimant is normally a quiet 

person but gets belligerent every time he gets intoxicated. She testified that on the 

night in question, she saw Claimant at the bar three times getting double “Jack and

Cokes” from Jessica Peterson (Peterson), another bartender, but acknowledged that 

she did not see Claimant consume the drinks. Ohl stated that those drinks had two 

shots of Jack Daniels, but the staff usually top the drinks so each drink would 

probably contain about three shots. She testified that she observed the verbal and 

physical altercation between Claimant and the bouncer. The two were grabbing 

and pushing each other and they fell to the ground, but no punches were thrown. 

Claimant was already saying his ankle was hurt before falling to the floor, and 

once he did, the bouncer fell on top of him. Ohl stated that the dance floor could 

not have been wet at the time of the incident because mopping could not have been 

done yet. She also did not see Claimant mopping the floor at any time during the 

night.

Peterson testified that she was Employer’s manager and helped with 

bookkeeping, but was working as a bartender on March 16, 2013. She testified 
7

that on the night in question, she served Claimant one to two “Jack and Cokes”

consisting of one to one-and-a-half shots of Jack Daniels in a 16-ounce glass.

Peterson testified that Claimant did not like the taste of the alcohol and requested a 

new drink, a bigger glass, or that the drink be split into two cups if the staff overpoured his drinks. She stated that he normally did not get ice in his drinks. She

also saw Frederick serve drinks to Claimant, but could not recall how many.

Peterson did not observe any prior difficulties between Claimant and 

the bouncer. She stated, at first, that Claimant was just yelling in general that the

bouncers were not doing their duties but that soon thereafter, Claimant and the 

bouncer got into a verbal and physical altercation. Peterson did not see anything 

after that point.

A Pennsylvania Liquor Control Board Incident Document Form 

signed by Peterson states that Claimant and the bouncer “started to argue . . . [and] 

proceeded to fight after hours. [The bouncer] then carried [Claimant] . . . where 

[Claimant] fell and broke his ankle.” (C.R. Item No. 41.)

II.

On August 3, 2015, the WCJ issued a Decision and Order granting 

Claimant’s petition. In his findings of fact, made in narrative form, the WCJ found 

as follows:

As reviewed above, the essence of the developments 

giving rise to this claim is fairly straightforward. The 

[C]laimant . . . in the early morning hours of March 16, 

2013, became involved in an argument with a co-worker 
8

which escalated into a physical confrontation, during the 

course of which he sustained the injuries described by 

him and reviewed in the medical evidence of record. 

Much of what occurred is essentially undisputed by any 

of the witnesses who have testified throughout the course 

of this litigation. . . . The credible testimony – that 

which has been accepted – supports a determination 

that [Claimant’s] conduct gave rise to the resulting 

confrontation, and that he was significantly 

intoxicated at the time of this development. All of the 

testimony and evidence supportive of this determination

has been deemed credible, and accepted, and any 

testimony or evidence adverse thereto has been deemed 

less credible, and dismissed as such. The question then 

becomes: if he started the fight, and was significantly 

intoxicated at the time he did so, how could his Claim 

Petition possibly be granted? The answer follows.

* * *

The [E]mployer knowingly, and willingly, provided the 

fuel which ignited the blaze – and now wishes to disavow 

itself of legal responsibility for the resulting inferno. 

This is precisely why virtually all employers discourage 

– if not strictly prohibit – the consumption of intoxicants

while an employee is “on duty,” or on the job. The law 

holds a commercial liquor licensee responsible for the 

harmful conduct of intoxicated patrons it has served, and 

must likewise hold it responsible for the harmful conduct 

of intoxicated employees which it has served, as well. 

Conversely, the [E]mployer, through counsel, has argued 

that the [C]laimant became excessively intoxicated of his 

own volition – and started a fight. True enough. And 

hardly a novel occurrence in the annals of youthful 

conduct. But the proximate cause – the legally 

sufficient cause, if you will, was that of the [E]mployer 

in allowing for what could hardly have been a wholly 

unexpected development given its provision of 

intoxicating beverages to the [C]laimant throughout 

the course of the evening.
9

(C.R. Item No. 5, Decision of Judge Benedict at 10-11 (emphasis added).)

The Fund appealed to the Board, which reversed the WCJ. It found 

that while Employer permitted Claimant to drink at work, there was no exception 

to Section 301(a)’s mandate that no compensation shall be paid if the injury would 

not have occurred but for the employee’s intoxication. Claimant then filed this 

petition for review.3

III.

Not disputing the Board’s interpretation of Section 301(a) of the Act, 

Claimant contends that the Fund did not meet its burden of establishing that his

injuries were the result of his intoxication.4 He contends that the WCJ only found 

his alleged intoxication to be the cause of the fight, not the cause of his injuries,

because the WCJ made no specific finding that his injuries would not have 

occurred “but for” his purported intoxication.

 

3 Our scope of review of the Board’s decision is limited to determining whether necessary 

findings of fact are supported by substantial evidence, whether constitutional rights were violated 

or whether an error of law was committed. Repash v. Workers’ Compensation Appeal Board 

(City of Philadelphia), 961 A.2d 227 (Pa. Cmwlth. 2008). Credibility determinations are within 

the exclusive province of the WCJ and findings of fact may only be overturned if they are 

arbitrary or capricious. Lehigh County Vo-Tech School v. Workmen’s Compensation Appeal 

Board (Wolfe), 652 A.2d 797, 800 (Pa. 1995).

4 Claimant also contends that the Fund lacks standing in this matter. However, that 

contention is waived because Claimant failed to raise the issue before the WCJ and the Board. 

See Mearion v. Workers’ Compensation Appeal Board (Franklin Smelting & Refining

Company), 703 A.2d 1080 (Pa. Cmwlth. 1997).
10

The issue of whether a claimant is precluded from receiving 

compensation due to his intoxication must be raised by an employer as an 

affirmative defense. Mahon v. Workers’ Compensation Appeal Board (Expert 

Window Cleaning & State Workers’ Insurance Fund), 835 A.2d 420, 428-29 (Pa. 

Cmwlth. 2003). To meet this burden, an employer must prove that the employee 

was intoxicated, and “that intoxication was the cause in fact of an injury . . . 

meaning that the harmful result would not have come about but for the negligent 

conduct.” Thomas Lindstrom Co., Inc. v. Workers’ Compensation Appeal Board 

(Braun), 992 A.2d 961, 967 (Pa. Cmwlth. 2010) (citations omitted). It is the 

employer’s “sole burden [] to convince the fact finder, by competent and 

substantial evidence that Claimant would not have fallen and sustained his injuries 

had he not been intoxicated.” Mahon, 835 A.2d at 429.

[W]e have repeatedly held that when delivering a 

causation opinion in a workers’ compensation case, a 

doctor or medical expert is not required to use magic 

words such as “substantial contributing factor,” 

“materially contributed,” or in this case, “cause in fact.” 

Yanish v. Workers’ Compensation Appeal Board 

(Bethlehem Mines Corp.), [] 507 A.2d 1302, 1303 ([Pa. 

Cmwlth.] 1986) (citing Workmen’s Compensation 

Appeal Board v. Bowen, [] 364 A.2d 1387 ([Pa. Cmwlth.] 

1976)). Rather, “[i]t is only necessary that the doctor’s 

testimony permit a valid inference that such causation 

was present.” Yanish, 507 A.2d at 1303-04. We 

certainly did not intend to require the use of “magic 

words” when issuing our opinion in Mahon, as we stated 

that an employer’s “sole burden was to convince the fact 

finder, by competent and substantial evidence that 

[c]laimant would not have fallen and sustained his 

injuries had he not been intoxicated.” Mahon, 835 A.2d 

at 429. We made it clear that it was up to the fact finder 

to infer from the evidence as a whole whether a 

claimant’s intoxication caused his injury.
11

Thomas Lindstrom Co., Inc., 992 A.2d at 967. The test is two-fold then: the 

employer must establish that the claimant was intoxicated, and “but for” that 

intoxication, the claimant would have not sustained his or her injuries.

Because “intoxication” is not defined in the Act, we must construe the 

word according to its “common and approved usage.” 1 Pa. C.S. § 1903. 

Although not in the context of Section 301(a) of the Act, our Supreme Court has 

interpreted the word “intoxication” to be:

a non-technical word which Webster’s Dictionary 

(unabridged 2nd ed. 1976) defines as “a making or 

becoming drunk.” “Drunk” is defined by Webster’s 

Dictionary as “overwhelmed or overpowered by 

alcoholic liquor to the point of losing control over one’s 

faculties.” [] Drinking and intoxication are not 

synonymous terms; therefore a jury instruction on 

intoxication is not warranted because evidence of 

drinking is introduced at trial. It is the intention of the 

legislature that a defendant be overwhelmed or 

overpowered by alcoholic liquor to the point of losing 

his or her faculties or sensibilities before an 

intoxication instruction be given.

Commonwealth v. Reiff, 413 A.2d 672, 674 (Pa. 1980) (emphasis added).

To make out the first prong, the employer must supply evidence 

demonstrating that the claimant was “overwhelmed or overpowered by alcoholic 

liquor to the point of losing his or her faculties or sensibilities . . . .” Id. Absent a 

blood or breath test, an employer can establish a claimant’s intoxication by 

offering lay testimony as to the claimant’s actions and behavior, his or her physical 
12

appearance, and other markers, such as slurred speech, that exhibit intoxication.

5

Generally, the weight to be assigned these various types of evidence presents a 

question for the fact-finder, who may rely on his or her experience and common 

sense. See, e.g., Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009).

In this case, while the WCJ found that Claimant caused the 

confrontation, he made no findings on how he arrived at his determination that 

Claimant was “intoxicated” other than the fact that he was drinking and got in a 

fight. While there was testimony that Claimant had three or four drinks over the 

course of four hours, there was conflicting testimony of how much alcohol was in 

each of those drinks, as well as conflicting testimony and evidence as to the effect 

of his alcohol consumption. The testimony and evidence also establish that up 

until the point of Claimant’s outburst and resulting “bar fight,” no one suspected

that Claimant was intoxicated. Again, even the ambulance service noted that 

“[Claimant] was alert and oriented, [he] was intoxicated however he still was 

 

5 As our Superior Court has noted in other contexts:

Intoxication is a matter of common knowledge, and opinions given 

by lay people are permissible on the issue. [Commonwealth v. 

Reynolds, 389 A.2d 1113 (Pa. Super. 1978).] However, the lay 

witness must have sufficient facts on which to base his opinion 

before he can express an opinion on another’s intoxication. 

[Commonwealth v. Hughes, 389 A.2d 1081 (Pa. 1978). See also 

Commonwealth v. Summers, 410 A.2d 336 (Pa. Super. 1979)]

(court concludes witness’ observations of the way the person 

looked and the way he was walking provided sufficient factual 

basis for witness to conclude a person was intoxicated). The court 

also looks to the witness’ personal knowledge and observation. 

[Commonwealth v. Davenport, 386 A.2d 543 (Pa. Super. 1978).]

Commonwealth v. Womack, 453 A.2d 642, 648 (Pa. Super. 1982).
13

sound [of] mind and answered all questions appropriately.” (C.R. Item No. 43, 

C-8-2 Itemized Records of Life Force (emphasis added).)

As to the second prong, even if Claimant was intoxicated, the WCJ 

made no findings as to whether his intoxication was the but-for cause of his 

injuries. As the various testimonies demonstrate, there is a clear conflict as to why 

or how Claimant fell. Claimant states that he slipped and fell on a wet dance floor 

while trying to avoid an altercation. Knauf and Ohl, however, state that the dance 

floor was not wet and that he fell as a result of the bar fight. There is also 

conflicting testimony as to whether Claimant’s injury occurred before he fell, 

whether he fell alone or with the bouncer, or whether he fell after being carried by 

the bouncer. Given such conflicting testimony, the WCJ had to explain how he 

arrived at his conclusion that “but for” Claimant’s intoxication he would not have 

been injured.

Accordingly, for the foregoing reasons, we vacate the Board’s order 

and remand this matter to the Board.

________________________________

DAN PELLEGRINI, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eric Coley, :

Petitioner :

:

v. : No. 2058 C.D. 2016

:

Workers’ Compensation Appeal :

Board (Illusionz of Greenville, :

LLC and Uninsured Employers’ :

Guarantee Fund), :

Respondents :

O R D E R

AND NOW, this 3

rd day of May, 2018, the order of the Workers’ 

Compensation Appeal Board (Board) is vacated, and this matter is remanded to the 

Board for proceedings consistent with this opinion.

Jurisdiction relinquished.

________________________________

DAN PELLEGRINI, Senior Judge