When an employee tests positive for marijuana or a controlled substance following an on-the-job injury, many employers and insurers likely believe that it will be relatively easy to escape responsibility for indemnity benefits and medical benefits.
When an employee tests positive for marijuana or a controlled substance following an on-the-job injury, many employers and insurers likely believe that it will be relatively easy to escape responsibility for indemnity benefits and medical benefits. Indeed, O.C.G.A. § 34-9-17(b) provides that “No compensation shall be allowed for an injury or death due to intoxication by alcohol or being under the influence of marijuana or a controlled substance, except as may have been lawfully prescribed by a physician for such employee and taken in accordance with such prescription.” Further, O.C.G.A. § 34-9-17(b) (2) establishes a rebuttable presumption that the accident and injury or death was caused by the ingestion of marijuana or the controlled substances if any amount of marijuana or a controlled substance is in the employee’s blood within eight (8) hours of the time of the alleged accident, as shown by chemical analysis of the employee’s blood, urine, breath, or other bodily substance. If the statute is so clear, why is it so difficult to successfully argue the “intoxication defense”?
In actuality, successfully defending a drug case involves much more than obtaining a positive drug test within eight (8) hours of an on-the-job injury and arguing that pursuant to O.C.G.A. § 34-9-17(b)(2), the employee is charged with proving that the accident was not caused by his or her ingestion of drugs. Instead, for employers, the “intoxication defense” is subject to O.C.G.A. §34-9-17, discussed above, O.C.G.A. §34-9-415, which provides the procedures and rules for drug testing, and O.C.G.A. §34-9-104(e) (4), which regulates admissibility of a drug test.
To be fair, proving that an accident was not caused by the ingestion of drugs can be a rather difficult task. Consequently, instead of undertaking that difficult task, many claimants will attack the drug test itself in an attempt to prove that it is inadmissible because it was not performed in compliance with the myriad of requirements set forth in O.C.G.A. § 34-9-415. Often, when claimants cam successfully show that each and every requirement of O.C.G.A. § 34-9-415 was not complied with, the drug tests are deemed inadmissible, and the case is effectively taken out of the realm of O.C.G.A. § 3.4-9-17(b). The case then becomes a standard “all-issues” case, where the claimant still has the burden of proof, but is not at all hindered by the fact that he or she was under the influence of drugs at the time the accident occurred. However, it appears as though the tide may be shifting at the State Board of Workers’ Compensation. Indeed, although it was never appealed and is, therefore, not binding precedent, a recent case shows that it may be more difficult for employees to win drug cases by arguing that the test establishing the presence of drugs was not administered in strict compliance with O.C.G.A. § 34-9-415.
Before discussing the afore-mentioned case, it is important for employers and insurers to know about the provisions of O.C.G.A. § 34-9-415 because this code section is actually the “meat and potatoes” of a drug case, even though the only place it is mentioned is under subsection 3 of O.C.G.A. § 34-9-17(b), the portion of the statute that deals with employees who unjustifiably refuse to submit to a drug test after an on-the-job injury. Indeed, many claimants have been awarded workers’ compensation benefits even though they had drugs in their system at the time, simply because each and every provision of O.C.G.A. § 34-9-415 was not complied with and the drug test was deemed inadmissible.
O.C.G.A. § 34-9-415 begins by stating, “All testing conducted by an employer shall be in conformity with the standards and procedures established in this article. . . .” The code section then addresses under what circumstances employers must conduct drug tests (i.e., after extending an offer of employment, reasonable suspicion testing, after an on-the-job injury), how testing must be performed (i.e., specimen must be collected with due regard to privacy, proper labeling to preclude likelihood of erroneous identification, an opportunity to identify recently used prescription or non-prescription medication, chain of custody procedures, the initial test must be followed by a confirmation test) and who can perform drug tests. Among other tings, the code section also regulates when and how an employer must notify an employee of a positive drug test, when and how a laboratory must advise the employer of drug test results and the laboratory’s other notification requirements to the employee. Clearly, there are several provisions of O.C.G.A. 34-9-415 that have nothing to do with the actual testing of a specimen for drugs, but as discussed below, failure to comply with the non-testing provisions can prove fatal to your intoxication defense.
In the case of Employee X v. ABC Company, within two (2) hours after an on-the-job injury, a drug test revealed that the claimant had 410 nanograms per milliliter of cocaine metabolites in his system and had a blood alcohol level of 0.019 (which is below the limit established by O.C.G.A. § 34-9-17)). At his deposition, he testified that he last used cocaine three months before the accident. The toxicology expert testified that with the levels of cocaine found in his system, it was scientifically impossible for the claimant to have last used cocaine three months before the accident. In fact, the expert testified that given the level of cocaine metabolites in the claimant’s system, he could have used cocaine any time between 30 minutes and 48 hours before the accident, but that he probably used it within 12 hours of the accident.
At the hearing, the claimant’s attorney did not argue that the drug test was inadmissible pursuant to O.C.G.A. § 34-9-102(e) (4). Nevertheless, he effectively alleged that it was inadmissible, by arguing that the drug test failed to comply with three provisions of O.C.G.A. § 34-9-415 and, as a result, the rebuttable presumption did not apply. Without an admissible drug test showing that the claimant was under the influence of cocaine at the time of the injury, it would have been easier for him to meet his burden of proving that the injuries he sustained from the forklift accident arose out of and in the course of his employment. Interestingly, none of the three provisions had anything to do with the actual testing of the specimen. Instead, one of the provisions dealt with giving the employee an opportunity to identify current or recently used prescription or non-prescription drugs; the second provision dealt with the employer notifying the employee of the positive test results; and the third provision dealt with the laboratory notifying the employer of the positive test results. Indeed, the Administrative Law Judge agreed with the Claimant, and found that the drug test was inadmissible because it failed to comply with the three aforementioned provisions of O.C.G.A. § 34-9-415.
On appeal, while the Appellate Division agreed that there was not technical compliance with two of the three code sections cited by the Administrative Law Judge, they found that the instances of technical non-compliance did not require the exclusion of the drug test results from evidence. Instead, the Appellate Division found that applicability of the presumption in O.C.G.A. § 34-9-17(b) (2) is dependent upon compliance with the procedural requirements for specimen collection in O.C.G.A. § 34-9-415. More importantly, the Appellate Division specifically found that only the requirements and procedures of O.C.G.A. § 34-9-415 that regulate testing to insure reliable, scientific results must be complied with in order to trigger the rebuttable presumption in O.C.G.A. § 34-9-17(b) (2). The Appellate Division further found that drug test results are admissible in evidence if accompanied by an affidavit confirming authenticity from the laboratory performing the test.
In a lengthy and well-reasoned opinion, the Appellate Division noted that the many of the provisions of the Drug-Free Workplace Act relied upon by the claimant were enacted to regulate random testing done in the workplace, and not testing done in conjunction with an accident and injury occurring on the job. Legislative intent showed that when enacting the Drug-Free Workplace Act, the General Assembly put safeguards into place that did not directly relate to the collection and testing of specimen in order to protect employees from potential adverse employment actions following a positive drug test conducted outside of the context of a work-related injury. The Appellate Division further noted that the provisions the Administrative Law Judge relied upon to exclude the drug test did not relate to the conduct of the testing itself, nor did compliance with the provisions tend to demonstrate that the results of a drug test would be any more reliable than they would have been had the test been administered without the provisions. “We see no reason why an employer should be required to demonstrate compliance with any code provision that does not impact the accuracy of a blood and alcohol screening in order to have the results of the screening admitted into evidence.”
Of note, the claimant in this case was unconscious when the specimen was taken for the drug test. Hence, he could not consent to the drug test, nor did he have an opportunity to list any drugs – prescription or otherwise – he had taken recently. On this issue, the Appellate Division found that the claimant’s privacy rights were not violated because O.C.G.A. § 34-9-207 provides that an employee who files a claim for workers’ compensation benefits waives any privilege or confidentiality relating to the treatment of his injury. The Appellate Division further noted, among other things, that the fact that the claimant was not in a position to consent to testing due to the severity of his injuries was not sufficient, in and of itself, to shield him from the consequences of a positive test where measures are taken to ensure that the collection and testing of the specimen are done in a scientifically acceptable manner designed to ensure the reliability of the test results.
In the end, the Appellate Division vacated the Administrative Law Judge’s award and remanded the case to the trial division for further proceedings consistent with their award. While the final outcome of the case is not known, the Appellate Division’s reasoning and holding, while not binding, is instructive for future drug cases. Although the defense attorney may still have to retain an expert toxicologist, and depose the individual who collected the specimen and the laboratory’s certifying scientist in order to prove that the test was done in a scientifically acceptable manner designed to ensure the reliability, it appears as though claimants faced with positive drug test results will not be able to escape the presumption that their injury was caused by the ingestion of drugs because of mere technicalities and procedures and provisions totally outside the employer and insurer’s control.