AP Reverses Intoxication Case

The appeals panel has reversed an ALJ’s decision and order based upon the judge’s misapplication of the intoxication defense. The decision is Texas Division of Workers’ Compensation Appeals Panel Decision No. 192062, decided January 21, 2020.

According to the decision, the claimant testified that he was injured when he fell from scaffolding. A hair specimen was collected from the claimant which tested positive for cocaine. The carrier disputed compensability based upon the existence of this positive test.

The ALJ resolved the disputed issues by deciding that: (1) the carrier specifically contested compensability of the claimed injury pursuant to § 409.022; (2) the claimant sustained a compensable injury; (3) and the claimant was not in a state of intoxication, as defined in Section 401.013, therefore, the carrier remains liable for compensation.

The carrier appealed the ALJ’s determinations that the claimant was not in a state of intoxication. The appeals panel reversed the decision of the ALJ and remanded the case for further consideration consistent with the decision.

Section 406.032(1)(A) provides that the carrier is not liable for compensation if the injury occurred while the employee was in a state of intoxication. Section 401.013(a)(2)(B) defines intoxication as not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of a controlled substance or controlled substance analogue, as defined by Section 481.002 of the Health and Safety Code. Section 401.013(c) provides that “[o]n the voluntary introduction into the body of any substance listed under Subsection (a)(2)(B), based on a blood test or urinalysis, it is a rebuttable presumption that a person is intoxicated and does not have the normal use of mental or physical faculties.”

As previously mentioned, the claimant underwent a post-injury hair specimen test that tested positive for cocaine. The ALJ states the following in the Discussion section of the decision and order:

An injured employee is presumed to be sober at the time of injury. However, [the] [c]laimant underwent a hair sample drug test on May 17, 2019, and tested positive for cocaine. Under [Section] 401.013(c), this positive drug test creates a rebuttable presumption that [the] [c]laimant was intoxicated and did not have the normal use of his mental or physical faculties at the time of his alleged injury.

Section 401.013(c) does not say that any drug test creates the rebuttable presumption of intoxication. Rather, that section specifically only refers to a blood test or urinalysis to create the rebuttable presumption that a person is intoxicated and does not have the normal use of his or her mental or physical faculties. We hold that testing of a hair sample, 3 days after the accident, may be sufficient to raise the question of intoxication under Section 401.013(a)(2), but does not create a rebuttable presumption of intoxication under Section 401.013(c). The ALJ, by stating the positive hair sample drug test created a rebuttable presumption that the claimant was intoxicated, applied the wrong standard to determine whether the claimant was in a state of intoxication at the time of the claimed injury. This constituted legal error. Therefore, we reverse the ALJ’s determination that the claimed injury occurred while the claimant was not in a state of intoxication as defined in Section 401.013.

Accordingly, the appeals panel remanded the intoxication issue to the ALJ for her to apply the correct standard as set out in Section 401.013 without applying the presumption of intoxication under Section 401.013(c).

This decision prompts us to remind carriers to conduct a detailed investigation of claims where the intoxication defense may be available to you. The following steps are suggested as a general line of inquiry in such cases.

Obtain confirmatory (quantitative) drug test. Levels are not particularly important but they rule out the possibility of a false positive. You should obtain this test early in the claim. Contact the lab that performed the test and ask them to preserve the sample. Use the informal request or, where necessary, request that DWC issue a subpoena.

Pay for the test. Often the bill for the drug screen is submitted with the bill for the initial treatment and is then denied on the basis that the claim is compensable. However, this is not medical treatment. Rather, it is a legal expense and should not be denied. If you are going to rely upon the results of the testing, you should pay for the testing.

Investigate the circumstances of the injury. Although it is not necessary for the intoxication to be a cause of the injury, if the nature of the injury is consistent with intoxication, it can go a long way to overcoming any prejudice against the intoxication provision.

Take a recorded statement of the claimant prior to issuing a denial. Do not argue with the claimant about his answers. Do not ask the claimant to further explain the answer. When you get the answer, move on to the next question. In a non-confrontational manner, be sure that you ask the following questions:

1. When was the last time you used the drug prior to the injury?

2. When was the next time you used the drug after the injury?

3. How frequently do you use this drug?

Obtain the “Legal Packet,” also called the “Substance Abuse Testing Documentation Packet.” The requestor of the test (usually the employer) can write a letter requesting this. Do not wait to do this as it sometime takes a while.

The legal packet will contain a certified copy of the results, the CV of the testing personnel, the calibration of the equipment, the chain of custody, and other information that is useful for a successful defense.

Inquire from the employer whether there were any witnesses who are knowledgeable about the claimant’s drug use and the frequency. If there were witnesses, talk to them informally. If they have any knowledge about the claimant’s drug use and the frequency of such use, consult with counsel about how to approach this aspect of the investigation. Get handwritten statements from these individuals as to that knowledge if it is relevant to the case.

Remember, how proximal to the injury the test is can be a factor in whether the claimant overcomes the presumption of intoxication, but it is not controlling.

The presumption is present based upon the existence of a statutorily described test alone.

Make a timely claims decision whether to accept or deny the claim. If the claims decision dictates that you accept the claim, initiate benefits in a timely fashion. If the claims decision dictates that you deny the claim, you should do so by adding the following language to any other relevant defense: “The claimant was in a state of intoxication at the time of injury.” In a claim-specific manner, briefly describe the evidence upon which you base your defense.

Consult with counsel regarding whether to involve the assistance of an expert. A positive drug test alone is sufficient to deny the claim. Thus, an expert’s opinion is not necessary at the time the case is denied. However it may be useful if the case proceeds into dispute resolution.

Intoxication cases are not particularly common. It is a good idea to engage your staff in regular training on how to investigate these kinds of cases. We are happy to assist you throughout the course of such investigations.