Under the Influence? Defense 101
By: John H. Ruocchio
The North Carolina Worker’s Comp Act has very few outright defenses. However, one of the defenses to compensability is whether a claimant was under the influence of a controlled substance and/or alcohol at the time of the accident. This defense is codified in N.C. Gen. Stat. § 97-12. There are two exceptions to the outright defense of intoxication/being under the influence of a controlled substance: (1) if the alcohol was supplied by the employer or an agent of the employer, it is not an appropriate defense; (2) if a controlled substance is prescribed by a medical doctor, then said defense is not available.
However, § 97-12 provides a complete bar to a plaintiff’s claim. Proving it is a two step process. One, you have to show that the plaintiff is under the influence of a controlled substance and perhaps most importantly, second, that it was a proximate cause of the injury, not the proximate cause.
One of the common pitfalls is that a carrier will obtain a positive drug or alcohol screen and then deny the case based exclusively on the test. However, the facts must show that being under the influence was a proximate cause. The classic example is an individual working on scaffolding on a roof or tall structure. The scaffolding falls due to faulty construction and plaintiff is injured, but the plaintiff tests positive for marijuana. However, being under the influence was not a proximate cause of the injury. Rather, the cause of the injury was due to the faulty scaffold.
Accordingly, in proving these cases, one must obtain either a urine or blood test. The statute states that a “result consistent with intoxication or being under the influence of blood or other medical tests conducted in a manner generally acceptable to the scientific community and consistent with the local state and federal law, if any, shall create a rebuttal presumption of impairment from the use of alcohol or a controlled substance.” Therefore, the law creates a presumption of impairment with a positive drug test. At that point, the plaintiff bears the burden of proof that he was not under the influence of an illegal controlled substance or being intoxicated.
PRACTICE TIP: Relying solely on initial drug screen or urine screen is not enough. In our practice, we find it best to obtain or preserve the actual blood samples and have those sent to a separate lab for analysis to determine the actual levels and not just the cut off amounts. Once the actual levels are determined, we then recommend sending and retaining a toxicologist to render an opinion. Please note that obtaining an order to preserve a sample is a simple matter. Lewis & Roberts routinely handles requests to preserve the blood sample and obtain the appropriate levels. However, time is of the essence as hospitals only hold blood samples for a finite period of time. The Industrial Commission will grant such a motion once it is made, but the decision to request one must be made without delay.
It is our experience that relying simply on a positive test, without the underlying levels, is insufficient to defend a claim. Relying solely on a legal presumption is not enough to carry the day. One must rely on facts and expert testimony. To not obtain the actual levels leaves your expert open to cross examination and being challenged by another expert concerning the ability to make any determination from the initial screening. As such, in order to be in the best possible position to defend a case, we recommend obtaining the actual samples via order of the Industrial Commission and retaining an expert to opine regarding same.
Once you have an opinion concerning the status of ones impairment, the question becomes a facts and circumstances test based on plaintiff’s actions. As such, coupled with obtaining and preserving the sample, is a complete investigation of the mechanism of injury and actions of plaintiff. Once it is determined how plaintiff injured himself, if those actions are consistent or inconsistent with how a person not under the influence would act, these facts are then presented to the expert for their opinion.
Again, once you establish the level, the issue then becomes whether plaintiff’s impairment was a proximate cause of the injury. It does not have to be the proximate cause and this is a substantial distinction. Simply proving that the impairment was a proximate cause of the injury is much simpler than proving it was the cause of the incident. As stated above, the statute does create a presumption. However, it is our experience that one should never rely on a presumption at a hearing. Therefore, it is our recommendation to have an expert to testify consistent with the actual levels of intoxication or being under the influence obtained through motion and order and based on those, hopefully the expert can render an opinion concerning a proximate cause of the incident.
FUN FACT: In 2005, NCGS § 97-12 was amended to add the rebuttable presumption of impairment based on a positive test. This amendment was in direct response to a case handled by Lewis & Roberts. This matter was Willy v. Williamson Produce, 149 N.C. App. 74, 560 SE2d 1 (2002), Rev’d 357 NC 41, 577 SE2d 622 (2003). At the Court of Appeals, the court created the presumption that once an employer proves the employee’s use of non-prescribed controlled substance, it is assumed the employee was impaired; once the employer presents competent evidence that the impairment was a proximate cause of the accident, the burden shifts to the employee to rebut the presumption of impairment which would show that the impairment was not a contributing proximate cause of the accident. Although this case was reversed by the Supreme Court, the General Assembly codified the holding with a 2005 amendment.