By Chad McDonald, Esq.
 
When an injured worker fails a drug screen after a work-place accident, the
employer and insurer rightly want to deny the claim.  However, to
effectively assert the “Intoxication defense,” employers and insurers should
be aware of several requirements, which include the method and timing of the
test, as well as what to do if the test is not “perfect.” 
 
What is required for
an Intoxication Defense? Pursuant to O.C.G.A 34-9-17,
workers’ compensation benefits can be denied if, at the time of the accident,
the employee: 1) had ingested alcohol or marijuana or improperly ingested a
“controlled substance,” 2) to the point of intoxication (or impaired
judgment), and 3) the employee’s intoxication proximately caused the
accident.
 

Timing is everything.  For
the employer and insurer to get the benefit of the rebuttable
presumption that the employee’s intoxication caused the accident, the employer
and insurer need to be able to document the employee had a substance in
his bloodstream within a specified time after the work injury. This can
be accomplished by administering the test within the specified time or
by an expert being able to testify that the employee would have had the
substance in his body during the specified time based on later
testing.  Effectively, what this means is that the test itself may
not need to be performed within the specified time so long as an expert
can testify that the employee had the substance in his body during the
time specified by statute.  
 
Marijuana/
controlled substances within 8 hours: In
a case of suspected intoxication by marijuana or a controlled
substance, the employer must obtain a chemical analysis showing any
amount of marijuana or controlled substance within eight hours of the
time of the alleged accident.

 

Alcohol
within 3 hours: To meet the initial
threshold in a case of suspected alcohol intoxication, an employer must
obtain a chemical analysis of the employee’s blood, urine, breath,
or other bodily substance showing a concentration of 0.08 grams or
greater within three hours of the time of the alleged accident.

 

Testing needs to be performed
at a lab which complies with the Drug Free Workplace Act, O. C.G.A
34-9-415.  In addition, the test needs
to be accompanied by an affidavit from the laboratory confirming
authenticity.

Proper identification of the
sample and proper chain of custody needed

 
How to prove the
Intoxication Defense without a perfect drug screen?  In
many circumstances, the employer and insurer may not be able to show by
testing the employee had alcohol or a controlled substance in his bloodstream
within the requisite time period or all of the aforementioned protocols may
not have been met.  The employer and insurer would not be entitled to
the rebuttable presumption that the intoxication caused the accident, but the
employer and insurer can still prevail in court by using “lay evidence” to
prove the requirements of O.C.G.A. 34-9-17.  Examples of such lay
evidence could include credible witness testimony in reference to observing
the employee’s illicit drug or alcohol use or admissions by the employee of
the same just prior to the accident, erratic behavior, impaired judgment by
the employee before the accident, odor of alcohol or illicit drugs, altered
physical appearance such as blood shot eyes or flushed face and
unsteadiness/slurred speech.
 
What if the employee
refuses to submit to a drug screen?  If the injured
employee unjustifiably refuses to submit to a reliable, scientific drug
screen in the manner set forth in O.C.G.A. 34-9-15, then the employer and
insurer get the rebuttable presumption that the accident was caused by the
consumption of alcohol or the ingestion of marijuana or a controlled
substance.