Are You Investigating and Asserting the Intoxication Defense?
How aggressively do you investigate and apply the intoxication defense? Do you challenge compensability when the substance detected is marijuana or its byproduct?
“Marijuana acceptance is growing,” writes David Langham, who is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims and Division of Administrative Hearings. Judge Langham believes that “It is likely that more states will follow in relaxing constraints on marijuana. There will be use, and unfortunately, there will be use on the road and in the workplace.”
How will state workers’ compensation systems administer the intoxication defense as marijuana usage gains increasingly widespread acceptance? The answer is, “the same way that alcohol and prescription drug usage is handled by state workers’ comp systems – through the use of presumptions and rebuttals.
Judge Langham describes how Texas handled the issue in the recent case of Denham v. Texas Mutual Ins. Co.:
Another aspect of impairment was recently reported by WorkCompCentral regarding a case in Texas. An employee there was killed in an automobile accident. It was alleged to be work-related and this Texas employer was subject to workers’ compensation. A post-mortem test revealed THC, and the “THC in his body created a presumption that he was intoxicated at the time of his death.” Thus, in this context, the burden was legally on the person claiming benefits (the employee’s survivors) to prove that the employee “was not impaired at the time of the accident.”
Proving a negative is always difficult. The effect of this provision of Texas law does not change the challenge of proving marijuana impairment. That determination of how recently marijuana was used and how much equates to impairment will remain a challenge. The Texas law, however, puts that burden on the injured worker instead of the employer by use of this presumption.
One thing that commentators (and courts) routinely overlook is the fact that the intoxication standard in Texas is not an “impairment” standard. Rather, it is a “loss of normal use” standard. In non-alcohol cases, the standard is met by proof that the employee fails to possess “the normal use of mental or physical faculties resulting from the voluntary introduction into the body of” the intoxicating substance. Under this standard, any loss of mental or physical faculties that is attributable to the use of an intoxicating substance is a loss that should result in a finding of intoxication. Conversely, when the presumption has been invoked, the claimant should be charged with establishing that she had “no loss of use” of her mental or physical faculties.
This is not the last time we will hear about the intoxication defense as it is applied to marijuana use in Texas. Denham doesn’t answer every question that can be raised in a marijuana intoxication case. It does, however, illustrate the importance of early and aggressive claims investigation.
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