In Spite of Statutory Presumptions, Proof of Positive Drug Test May Not Be Enough to Defeat Claims

In the great majority of jurisdictions, voluntary intoxication that renders an employee incapable of performing his or her work is a departure from the course of employment sufficient to defeat a claim for workers’ compensation benefits for injuries related thereto [see Larson’s Workers’ Compensation Law, § 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 where there was some odor of alcohol about his or her breath. 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 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 statues go 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 is the tendency on the part of some employers and/or carriers to think they’ve won their case as soon as they present the objective evidence of intoxication or drug use at the hearing. The employer/carrier would do well, however, to arm itself with other evidence in case the employee is successful in rebutting the presumption. A recent decision by a Louisiana appellate court [Stenson v. Pat’s of Henderson Seafood, 2012 La. App. LEXIS 126 (Feb. 1, 2012)] illustrates the point quite well. 

Stenson, a restaurant employee, broke her left wrist when she tripped over a box of potatoes in the restaurant’s “prep area” while working a lunch shift. Immediately after the accident, Stenson was taken to a hospital emergency room where, pursuant to company policy, she was drug tested. She tested positive for marijuana and Xanax. Because of the positive test and relying upon Louisiana’s statutory presumption of impairment [La. Rev. Stat. 23:1081(12)], her employer and its carrier paid only the emergency room bill and denied all other workers compensation benefits.

Following a trial, a WCJ found that intoxication was not a contributing cause of Stenson’s accident and awarded temporary total disability benefits and medical benefits. The employer/carrier appealed. The appellate court affirmed, acknowledging that the employer/carrier met the burden of proving that Stenson was intoxicated at the time of the accident by means of the statutory presumption of intoxication and that, accordingly, the burden shifted to Stenson to prove that the intoxication was not a contributing cause of the accident. The court agreed that Stenson had successfully rebutted the presumption, however, based on the testimony that she had performed her job all morning without complaints from the customers or any other staff members. Stenson admitted she had smoked marijuana four days prior to the accident, but maintained she had not done so on the day of the accident. Based on Stenson’s evidence, the appellate court could not say that the WCJ was manifestly erroneous in finding that Stenson had overcome the presumption of intoxication.

The court also agreed with the WCJ that intoxication was not a contributing cause of the accident. Boxes of potatoes had been left on the floor in the “prep area” where Stenson and other employees were required to go in the course of their duties. No one testified that Stenson appeared intoxicated at the time of the accident. Thus, the WCJ’s findings were supported by the record.