Evidence of Impairment

Positive Drug Test Not a Slam Dunk in Court

Why did an appeals court find that an injured worker was eligible for comp, even though he tested positive for cocaine and admitted using it?
By: | June 13, 2014 • 4 min read

Employers and insurers arguing that an injured worker’s illegal drug use should block payment of workers’ compensation benefits must pick their battles wisely amid state laws limiting the argument’s success.

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A recent appeals court finding that an insurer must provide benefits for an electrician who suffered electrical burns — despite post-accident urine analysis revealing cocaine use and the Texas worker’s admission that he consumed the drug — could have been the outcome in other states and serves as an example of a typical “proximate cause” hurdle that employers and insurers must clear.

Although employers regularly conduct post-accident drug tests, states often require proof that a worker was intoxicated or impaired at the time of the accident before allowing claims payers to deny workers’ comp benefits.

Merely establishing illegal drug use is not always enough.

Trey Gillespie, Senior Workers Compensation Director, Property Casualty Insurers Association of America

Trey Gillespie, senior workers’ compensation director, Property Casualty Insurers Association of America

“There becomes a problem sometimes when the insurer or the employer tries to prove that they were intoxicated at the time of the accident because there are not necessarily clear toxicology standards for establishing impairment,” said Trey Gillespie, senior workers compensation director at Property Casualty Insurers Association of America.

The June 4, 2014 opinion by Texas’ 7th District Appeals Court in the case of Bituminous Fire & Marine Insurance v. Ricardo Ruel shows the insurer failed to overcome that hurdle.

Prior to treatment of his electrical burns, Ruel provided a hospital urine sample that showed the presence of benzoylecgonine, a cocaine byproduct remaining in the body after cocaine is metabolized. He later testified he consumed two lines of cocaine and six beers on Tuesday night, prior to the Friday morning accident.

But a supervisor and a coworker, who also suffered burns in the accident, testified that Ruel appeared normal and fit for duty before an electrical explosion occurred while they replaced a cover on a trough containing live wiring.

The case eventually went to trial and experts for the insurer and claimant disagreed on the value of urinalysis in establishing Ruel’s impairment.

A jury concluded Ruel was not impaired at the time of the accident and the appeals court affirmed.

Under Texas law — as in other states — an employer is not liable for workers’ comp benefits if an injury occurs while an employee is intoxicated.

But the appeals court noted that “unlike alcohol consumption, there is no level or test defined by statute that establishes per se if a person has lost use of his or her physical and mental faculties due to the ingestion of a controlled substance.”

The court found it reasonable to conclude Ruel was not intoxicated and affirmed the trial court’s ruling in his favor based on the jury’s decision that he was not intoxicated.

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By contrast, Mississippi’s Court of Appeals found in a March 2014 ruling that a trucker who fell while exiting an 18 wheeler was not entitled to workers’ comp benefits after a hospital urinalysis showed cocaine use.

In William Walker vs. Williams Transport, witnesses testified that following the accident, the trucker “appeared out of it” and “a little disoriented.” He also admitted to past crack cocaine use and prior to the accident he called a supervisor for directions to a sand yard, even though he previously drove the route several times a day.

The appeals court found substantial evidence that Walker was intoxicated when he fell and injured his back and ribs.

In addition to the other evidence, the court found the testimony of a pharmacology and toxicology expert particularly significant. The expert testified that the urinalysis showed Walker used cocaine two or three days before the accident and that use likely caused disorientation that contributed to his fall.

Such cases typically require payers seeking to deny benefits to prove that drugs or alcohol were the accident’s proximate cause, meaning the injury would not have occurred but for impairment, said Jeffrey Adelson, a partner at Adelson, Testan, Brundo, Novell & Jimenez, a workers’ comp defense firm.

Jerry Adelson, general counsel and managing partner, Adelson, Testan, Brundo, Novell & Jimenez

Jeffrey Adelson, general counsel and managing partner, Adelson, Testan, Brundo, Novell & Jimenez

“Your first hurdle is proving the substance was in their body,” he said.

That is why employers want a urine sample obtained immediately following a significant accident, such as one that sends a worker to the hospital.

“The second hurdle is showing that the substance impaired their ability to engage in the accustomed activities of their job in a safe fashion,” Adelson added.

The second hurdle presents a greater challenge for employers and insurers, potentially requiring legal expenses including paying for medical and toxicology experts.

Court rulings resulting from an intoxication defense often hinge on case-specific facts, more so than other workers’ comp issues that are litigated, Adelson said.

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For example, the outcome in the Texas case may have differed had a jury learned that the claimant consumed cocaine ten minutes before the accident rather than a few days prior, as actually occurred.

The closer the drug use to the accident, the more challenging it is for the claimant to prevail, Adelson said.

The proximate-cause hurdle should force workers’ comp payers to carefully consider whether to litigate a case involving a worker who tested positive for drug use.

But it shouldn’t discourage employers from pursuing the defense when the facts weigh in their favor.

Consider the consequences should word spread among employees that a drug-using coworker caused an accident, yet gets to stay home and collect benefits.

Roberto Ceniceros is senior editor at Risk & Insurance® and chair of the National Workers' Compensation and Disability Conference® & Expo. He can be reached at [email protected] Read more of his columns and features.

4 Companies That Rocked It by Treating Injured Workers as Equals; Not Adversaries

The 2018 Teddy Award winners built their programs around people, not claims, and offer proof that a worker-centric approach is a smarter way to operate.
By: | October 30, 2018 • 3 min read

Across the workers’ compensation industry, the concept of a worker advocacy model has been around for a while, but has only seen notable adoption in recent years.

Even among those not adopting a formal advocacy approach, mindsets are shifting. Formerly claims-centric programs are becoming worker-centric and it’s a win all around: better outcomes; greater productivity; safer, healthier employees and a stronger bottom line.

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That’s what you’ll see in this month’s issue of Risk & Insurance® when you read the profiles of the four recipients of the 2018 Theodore Roosevelt Workers’ Compensation and Disability Management Award, sponsored by PMA Companies. These four programs put workers front and center in everything they do.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top,” said Steve Legg, director of risk management for Starbucks.

Starbucks put claims reporting in the hands of its partners, an exemplary act of trust. The coffee company also put itself in workers’ shoes to identify and remove points of friction.

That led to a call center run by Starbucks’ TPA and a dedicated telephonic case management team so that partners can speak to a live person without the frustration of ‘phone tag’ and unanswered questions.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top.” — Steve Legg, director of risk management, Starbucks

Starbucks also implemented direct deposit for lost-time pay, eliminating stressful wait times for injured partners, and allowing them to focus on healing.

For Starbucks, as for all of the 2018 Teddy Award winners, the approach is netting measurable results. With higher partner satisfaction, it has seen a 50 percent decrease in litigation.

Teddy winner Main Line Health (MLH) adopted worker advocacy in a way that goes far beyond claims.

Employees who identify and report safety hazards can take credit for their actions by sending out a formal “Employee Safety Message” to nearly 11,000 mailboxes across the organization.

“The recognition is pretty cool,” said Steve Besack, system director, claims management and workers’ compensation for the health system.

MLH also takes a non-adversarial approach to workers with repeat injuries, seeing them as a resource for identifying areas of improvement.

“When you look at ‘repeat offenders’ in an unconventional way, they’re a great asset to the program, not a liability,” said Mike Miller, manager, workers’ compensation and employee safety for MLH.

Teddy winner Monmouth County, N.J. utilizes high-tech motion capture technology to reduce the chance of placing new hires in jobs that are likely to hurt them.

Monmouth County also adopted numerous wellness initiatives that help workers manage their weight and improve their wellbeing overall.

“You should see the looks on their faces when their cholesterol is down, they’ve lost weight and their blood sugar is better. We’ve had people lose 30 and 40 pounds,” said William McGuane, the county’s manager of benefits and workers’ compensation.

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Do these sound like minor program elements? The math says otherwise: Claims severity has plunged from $5.5 million in 2009 to $1.3 million in 2017.

At the University of Pennsylvania, putting workers first means getting out from behind the desk and finding out what each one of them is tasked with, day in, day out — and looking for ways to make each of those tasks safer.

Regular observations across the sprawling campus have resulted in a phenomenal number of process and equipment changes that seem simple on their own, but in combination have created a substantially safer, healthier campus and improved employee morale.

UPenn’s workers’ comp costs, in the seven-digit figures in 2009, have been virtually cut in half.

Risk & Insurance® is proud to honor the work of these four organizations. We hope their stories inspire other organizations to be true partners with the employees they depend on. &

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]