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Workers' Compensation

Statutory Presumptions of Intoxication and Drug Use Don’t Always Ensure an Easy Win for Employers

 By Thomas A. Robinson

At the heart of the workers’ compensation bargain is the essential doctrine that employee fault should generally not be considered when determining the compensability of the employee’s claim. Indeed, as Dr. Larson has so skillfully written:

“Misconduct of the employee, whether negligent or wilful, is immaterial, not because it is affirmatively stated to be so in the statutes (although a few contain such language), but because the basic test of coverage is relation of the injury to the employment, with no reference to the personal merits of the parties. The compensation act marks out a circle whose boundaries are fixed by the “arising out of” and “in the course of” employment concept. Within that circle there is compensation. Outside there is not. Most acts are simply silent on the entire question of general fault in the employee. There is therefore no occasion to distinguish between negligent fault and wilful fault, since fault itself can have no bearing on the process of drawing the boundaries of compensability.”

Larson’s Workers’ Compensation Law, § 32.01.

The great majority of jurisdictions, however, provide an exception when it comes to voluntary intoxication that renders an employee incapable of performing his or her work. Such intoxication is usually held to be a departure from the course of employment sufficient to defeat a claim for workers’ compensation benefits [see Larson, § 36.01, et seq.]. Proof of intoxication (here I refer not only to the state of being under the influence of intoxicating beverages, but also to situations in which the employee’s performance is sufficiently impeded by drugs) generally fails where there is only anecdotal testimony that the employee had a “few drinks” or “used” drugs, or where there was perhaps some odor of alcohol about his or her breath, but no actual evidence of the amount of the substances within the employee’s system. Of course, post-injury blood tests and drug screening can provide objective evidence of impairment. Such tests are now rather routinely given in hospital emergency rooms and at other medical facilities providing medical care for occupational injuries.

In recent years, a number of states [see the non-exhaustive list below] have added special presumptions to their workers’ compensation law, such that if an injured worker has a sufficiently elevated blood alcohol level or tests positive for opioid or other controlled substances, he or she is presumed to have been under the influence of such alcohol and/or drugs at the time of injury. Some of the presumption statutes go even further, to state that an inference, therefore, arises that the cause of the injury was the intoxication or drug use. Aided by these presumptions, there can be a tendency on the part of some employers and/or carriers to think they’ve won their case as soon as they present objective evidence of intoxication or drug use at the hearing. As illustrated in a recent case from Utah, Barron v. Labor Comm’n, 2012 Utah App. LEXIS 78 (Mar. 22, 2012), those employers and carriers would do well to buttress their denials with additional evidence pointing to the alleged impairment of the employee’s physical abilities and condition.

Facts and Procedural Background

Barron worked as a welder and connector of structural iron at a construction site. On the day of his injury, he had been assigned the task of cutting a hole for a drain in the second-story floor, which was covered with temporary metal decking over structural steel beams. As he walked backwards on the second floor, unrolling the hose attached to the cutting torch, he stepped off the edge of the decking and fell more than fourteen feet to the concrete floor, suffering injuries to his spine, arms, liver, and a possible intracranial bleed.

He filed a claim for permanent partial disability, medical expenses, and recommended medical care. Conceding that the claim was otherwise compensable, his employer and its carrier challenged disability compensation on the basis of Barron’s drug use—a urine sample taken at the hospital the day of the accident tested positive for cocaine metabolites, with a level of 493 ng/ml. The cutoff concentration level for the initial screening test was 300 ng/ml, and the cutoff concentration for the confirmation test was 150 ng/ml. Barron admitted to having shared a quarter of a gram of cocaine with a friend two days before the accident.

The Administrative Law Judge awarded medical costs but denied disability compensation, concluding that the presence of the cocaine metabolite in Barron’s system at the time of the accident triggered a statutory presumption under Utah Code Ann. § 34A-2-302(4)(a) that drug use was the major contributing cause of his injury. The ALJ further concluded that Barron had failed to rebut the presumption, stating, “There is no showing that some outside force caused [Barron] to fall.”

The Commission affirmed the ALJ’s decision. Relying upon a letter from a toxicologist stating that the level of cocaine in Barron’s system “indicated use of a greater amount, more recent use, or more frequent use of cocaine than he admitted,” the Commission rejected Barron’s assertion regarding the quantity and timing of his cocaine use. It also rejected Barron’s argument that the lack of safety measures was the major contributing cause of his injuries. Neither the ALJ’s decision nor the Commission’s decision discussed testimony offered by Barron indicating that he showed no signs of impairment at the time of the accident.

Analysis by the Court of Appeals

Utah’s Rebuttable Presumption Regarding Drug Use

Initially, the court examined Utah Code Ann. § 34A-2-302(4)(a), noting that the statute created a rebuttable presumption that use of a non-prescribed controlled substance was the major contributing cause of the worker’s injury when any amount of the substance or its metabolite was found in the employee’s system at the time of the injury. The court added that to trigger the presumption, the presence of the controlled substance or its metabolite must be established by a chemical test that met certain statutory requirements and that Barron had not challenged the administration of the drug test itself. Additionally, the court observed that the presumption could be rebutted by evidence showing that:

1. the chemical test was inaccurate;

2. the employee did not unlawfully use a controlled substance;

3. the test results do not exclude the possibility of passive inhalation of marijuana;

4. according to expert medical opinion, the level of the controlled substance in the employee’s system does not support a finding that drug use was the major contributing cause of the employee’s injury; or

5. the employee’s drug use “was not the major contributing cause of the employee’s injury.”

Barron’s effort to rebut the presumption was targeted at the fifth alternative. He had offered testimony that he was not impaired the morning of the accident and that unsafe working conditions at the construction site were the major contributing cause of his injuries.

The court observed that Barron’s employer had suggested that for Barron to rebut the presumption under the fifth alternative, he would have to provide evidence that “an outside force” or occurrence was the major contributing cause, and that he had not done so. The Court examined the findings of the ALJ and the Commission’s decision to affirm and noted that both seemed to have read the statute to require Barron to rebut the presumption by identifying a factor other than his drug use as the major cause of his injury. Pointing to specific wording in the ALJ’s decision, the Court noted that the ALJ concluded that Barron failed to show that his drug use was not the major contributing cause of his injury, because he made “no showing that some outside force caused” his fall.

ALJ and Commission Misread Presumption Statute

The appellate court said that the ALJ (and the Commission) was wrong. The court explained that while identifying “some other force” as the major contributing cause of the injury would surely be one way to show that the employee’s drug or alcohol use was not the major contributing cause of the injury, nothing in the statutory language limited the employee to this approach. Nor was there anything in the statute that would prevent an employee from rebutting the presumption with evidence demonstrating that, whatever the major contributing cause of his injury might have been, it could not have been his drug or alcohol use, because he was not impaired at the time of the accident. The court concluded that an employee could rebut the presumption with evidence that he was not impaired at the time of the accident.

Turning back to the evidence presented by Barron at the hearing, the court indicated he had offered his own testimony, that of his welding foreman and another coworker, and reports from the medical personnel who treated him immediately after the accident to show that he was not impaired. While the foreman who assigned Barron work the morning of the accident testified that Barron looked like he had a head cold, with a red, sniffling nose, the foreman also testified that he trusted Barron to work safely and that Barron was “very skilled” at working at dangerous heights. Barron argued that the foreman’s willingness to assign him multiple tasks on the second story that morning also created a reasonable inference that Barron did not appear to the foreman to be impaired. Finally, several medical personnel who treated Barron the day of the accident reported that Barron was “awake, alert, and oriented.”

The court indicated that against this testimony, evidence of actual impairment was minimal, that while the record contained a letter from the toxicologist noting the level of cocaine metabolites found in Barron’s system was well above the concentration required for a confirmed positive test, and while the letter also opined that this level of cocaine metabolite “indicated use of a greater amount, more recent use, or more frequent use of cocaine than [Barron had] admitted,” nevertheless, the record contained no evidence of how this level of metabolite in Barron’s system would have affected his mental and motor function, if at all, at the time of the accident.

Summarizing its holding, the court stated that Barron’s evidence of non-impairment was substantial, but entirely dependent on the credibility of his witnesses. The court directed the Commission, therefore, to determine whether Barron’s evidence of non-impairment, when weighed against any record evidence of impairment, was sufficient to establish that his drug use was not the major contributing cause of his injury. The court stressed that Barron need only demonstrate that his drug use was not the major contributing cause of his injury; he need not demonstrate what was.

Presumption Only Shifts Burden; It Carries No Weight Itself

As a final passing shot at the ALJ and the Commission, the court indicated that as the Commission weighed the record evidence in determining whether Barron had rebutted the statutory presumption, it should remember that the presumption itself carried no weight. That is to say, a presumption is “merely a burden-shifting device; it is not evidence.”

More and More States Adding Presumption Provisions to Workers’ Comp Acts

Utah is among a growing number of states that have added presumption of intoxication provisions to their Workers’ Compensation Acts. Although not necessarily an exhaustive list, practitioners should note that similar presumptions to that contained in Utah Code Ann. § 34A-2-302(4)(a) can be found in at least a dozen other jurisdictions:

Alabama: Ala. Code § 25-5-51

Arkansas: Ark. Code Ann. § 11-9-102(4)

Colorado: C.R.S. 8-42-112.5

Florida: § 440.09(7)(b), Fla. Stat.

Georgia: Ga. Code. Ann. § 34-9-17(b)(2)

Kansas: Kan. Stat. Ann. § 44-501

Louisiana: La. Rev. Stat. Ann. 23:1081(12)

Nevada: Nev. Rev. Stat. § 616C.230(1)(d)

North Carolina: N.C. Gen. Stat. § 97-12(3)

Ohio: ORC Ann. 4123.54

Tennessee: Tenn. Code Ann. § 50-6-110

Texas: Tex. Lab. Code § 401.013

Importance of “Rebuttable” Nature of Presumption

The obvious needs to be stated plainly: these statutory presumptions are rebuttable; they’re not conclusive. All too many times, an employer or carrier can be lulled into inaction when medical personnel supply a positive drug or alcohol test following an accident at the workplace. For example, in another recent case, Stenson v. Pat’s of Henderson Seafood, 2012 La. App. LEXIS 126 (Feb. 1, 2012)], the appellate court held that while the employer/carrier met the burden of proving that the employee was intoxicated at the time of the accident by means of the statutory presumption of intoxication—accordingly, shifting the burden to the employee to prove that the intoxication was not a contributing cause of the accident, the court also held that the employee had successfully rebutted the presumption by coming forward with testimony that she had performed her job all morning without complaints from the customers or any other staff members. The employer introduced nothing to contradict the employee’s evidence and full workers’ compensation benefits were awarded.

Practitioners should also recognize that even armed with the statutory presumption, the intoxication defense is exactly that—a defense. Once the employee has rebutted the presumption, the burden is, as it has always been, on the employer and carrier to show the elements of its affirmative defense. The Utah court in Barron, therefore, stressed that there was a significant difference between requiring the injured employee to show that the intoxication was not the major contributing cause of the injury and requiring him to show that some other factor was.

As noted above, some state legislatures have determined that public policy and other factors dictate that the ordinary rule ignoring employee fault as a causative element in workplace injuries should be altered where there is objective evidence that the injured worker had improper levels of alcohol or controlled substances in his or her system at the time of the accident. Yet even in those states that have enacted special statutory presumptions related to alcohol or drug use, employers, carriers, administrative law judges, and others should recognize that the issue is not whether the employee was intoxicated at the time of the injury, but rather whether the intoxication, if it existed, was a sufficient causal agent in producing the injury.

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