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Larson's Case Law Developments 10/19/2009 12:15:03 AM EST Presence of Cannabinoids and Opiates in Worker's System is Insufficient to Support Denial of Benefits Author/Editor A recent decision from North Carolina, Moore v. Sullbark Builders, Inc., 680 S.E.2d 732 (N.C. Ct. App. 2009) illustrates an important rule related to drug testing and workers' compensation claims: the presence of controlled substances in the injured worker's blood stream is generally insufficient to support a denial of benefits; evidence as to the levels of the substances sufficient to cause impairment is generally required.
In Moore, the worker was employed as a trim carpenter at one of his employer's construction sites. He sustained serious injuries when he fell 12 feet to the bottom of a retaining wall as he and another employee carried lumber on a rainy day. When he reached the hospital, the worker submitted to a urine toxicology screening that indicated the presence of cannabinoids and opiates. The toxicology report did not, however, indicate the levels or concentrations of the detected substances. When the worker filed a workers' compensation claim for his injuries, the employer contended that it was barred by the provisions of N.C. Gen. Stat. § 97-12, because plaintiff was intoxicated at the time of the accident. The full North Carolina Industrial Commission adopted a deputy commissioner's award, finding that the employer had failed to prove that the employee was intoxicated at the time of the accident. The employer appealed.
Observing that two medical experts had testified that a urine toxicology test that did not provide an actual level for cannabinoid concentration did not address impairment and, therefore, could not be used to show impairment, the Court of Appeals agreed that there was no credible evidence that on the day of the injury the employee was under the influence of marijuana or other controlled substances. As the Industrial Commission had indicated, the worker's fall was more likely caused by an accidental misstep. Moreover, the railing the worker attempted to use to steady himself had given way. Accordingly, the court affirmed the award and findings of the Commission.
Typical State Intoxication/Drug Influence Statute
The typical statute states a simple causal relation in such terms as ''injury due to (or caused by, or resulting from) intoxication.'' [see, e.g., Cal. Lab. Code § 3600(4)]. Others prefer the somewhat similar phrase ''occasioned by'' intoxication [see, e.g., Ark. Code Ann. § 11-9-102(4)(B)(iv)(a)], or require that the intoxication be the proximate cause [see, e.g., Miss. Code Ann. § 71-3-7]. the sole cause [see, e.g., Md. Labor and Employment Code Ann. § 9-506(c), the primary cause [see Fla. Stat. Ann. § 440.09(3)], a substantial factor in causing [see Iowa Code § 85.16]. Other formulations of the defense include that the injury be ''proximately caused primarily by voluntary intoxication'' [Ky. Rev. Stat. § 342.610] or that it be ''by reason of being in a state of intoxication.'' [Neb. Rev. Stat. § 48-127]. Generally, the courts are inclined to avoid a forfeiture of benefits because of the intoxication defense unless the defense is clearly made out. Ordinarily, when a statute says ''caused by'' or ''due to,'' this refers neither to remote cause nor to sole cause; it must mean proximate cause [see, e.g., Collins Signs, Inc. v. Smith, 833 So. 2d 636 (Ala. Civ. App.), cert. denied, 833 So. 2d 641 (Ala. 2002), construing Ala. Code § 25-5-51; Smith v. Workers' Comp. App. Bd., 123 Cal. App. 3d 763, 176 Cal. Rptr. 843 (1981); Kinsey v. Champion American Service Center, 268 S.C. 177, 232 S.E.2d 720 (1977)].
When the facts have presented, in addition to the intoxication, a special source of hazard bearing upon the accident, courts have frequently, but by no means always, held that the intoxication was not the proximate cause. Thus, when there was evidence both that the claimant was intoxicated and that the wheel of his car had broken, the broken wheel, not the intoxication, was held to be the ''cause'' of the overturn of the car [Evans v. Louisiana Gas & Fuel Co., 19 La. App. 529, 140 So. 245 (1932)]. When a sawmill worker was killed by getting his jacket caught in a shaft while intoxicated, it was held that the employer had failed to prove that the intoxication was the ''proximate'' cause of the accident [Shiplett v. Moran, 58 Ga. App. 854, 200 S.E. 449 (1938)]. Where, however, nothing in the employment environment adds to the hazard, the intoxication defense is more apt to be successful. Even in a case in which the intoxication defense might otherwise apply, the employer may be estopped to assert it if that employer helped to cause the episode. For example, in an early California case [Tate v. Industrial Acc. Comm'n, 120 Cal. App. 2d 657, 261 P.2d 759 (1953)], the general manager, aware of the employee's weakness for alcohol, took him to a bar and later to a tavern, having drinks at both places. The court adopted the view that, when the employer permits intoxication or other dangerous practices among employees, the results are industrial injuries.
See generally Larson's Workers' Compensation Law, §§ 36.01, 36.03. Create an account or login to post comments.
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