By Josh Carroll
With Analysis of the Court of Appeals’ Recent Decision in Lingo v. Early County Gin, Inc.
Many attorneys who represent employees have experienced the scenario where a client with a serious work injury presents to the office, signs a representation contract, and within a few days or weeks the attorney learns the employee reportedly tested positive for drugs or alcohol shortly after the accident. A few of us have been lucky enough to represent the forthright client, who actually mentions the positive drug screen at the initial consultation so as not to blind-side us with this news for the first time upon receipt of a WC-1 or WC-3 controverting the claim.
An employee’s attorney may initially feel misled, or even betrayed, by the employee when there is no mention of the positive drug screen by the employee during the client intake process. If this occurs, it is important for the practitioner to take a deep breath, set up a face-to-face meeting with the client, and set the file down for a day or two before making a rash decision to terminate representation. (Practice pointer: The face-to-face meeting is the time to confront the client with news about the positive drug or alcohol screen, not over the phone. Most likely, the client will know why the lawyer is calling the client in for a meeting.)
When faced with an intoxication defense an employee’s attorney may also feel like he or she is standing at the base of Mount Rainier (Elevation: 14,409’) with a seemingly impossible trek ahead. However, all hope is not lost for a successful claim. What is required is a thorough analysis of the law regarding drug and alcohol testing procedures, burdens of proof, and proximate cause of the injury.
I recently handled a claim where an employee was lifted 10-15 feet in the air on forks attached to a front-end loader. His task was to cut limbs off of trees with a chainsaw. The operator of the front-end loader hit the wrong lever and suddenly dumped the forks the employee was standing upon, causing him to fall to the ground below and sustain a low back injury. (Luckily, he had the wits to throw the chainsaw off to the side while falling!) The defense in the case was that the employee refused to submit to a post-accident drug screen. Initially, I was concerned about the alleged drug screen refusal. That is, until one of my older, wiser partners pointed out there was no real proximate cause link between alleged intoxication and the cause of the accident, which was the spontaneous release of the forks by the operator of the front-end loader. Intoxicated or not, gravity dictated the client’s inevitable fall to the ground. I had not taken enough time to fully analyze the context of the accident in relation to the asserted intoxication defense. That proved to be a strong enough argument to convince the employer/insurer to pay fair money to settle the claim.
In evaluating the relative strength of an asserted intoxication defense, the practitioner should first take care to understand the matters of proof and burden-shifting at stake. O.C.G.A. § 34-9-17(b) states:
- 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:
- If the amount of alcohol in the employee’s blood within three hours of the time of the alleged accident, as shown by chemical analysis of the employee’s blood, urine, breath, or other bodily substance, is 0.08 grams or greater, there shall be a rebuttable presumption that the accident and injury or death were caused by the consumption of alcohol;
- If any amount of marijuana or a controlled substance as defined in paragraph (4) of Code Section 16-13-21, Code Sections 16-13-25 through 16-13-29, Schedule I-V, or 21 C.F.R. Part 1308 is in the employee’s blood within eight hours of the time of the alleged accident, as shown by chemical analysis of the employee’s blood, urine, breath, or other bodily substance, there shall be a rebuttable presumption that the accident and injury or death were caused by the ingestion of marijuana or the controlled substance;
- If the employee unjustifiably refuses to submit to a reliable, scientific test to be performed in the manner set forth in Code Section 34-9-415 to determine the presence of alcohol, marijuana, or a controlled substance in an employee’s blood, urine, breath, or other bodily substance, then there shall be a rebuttable presumption that the accident and injury or death were caused by the consumption of alcohol or the ingestion of marijuana or a controlled substance.
O.C.G.A. § 34-9-17(b) (2018).
O.C.G.A. § 34-9-17(c) goes on to state: “With the exception of the rebuttable presumptions set forth above, the burden of proof shall be generally upon the party who claims an exemption or forfeiture under this Code section.”
So, assuming all the elements of a compensable claim are otherwise met, the employer seeking to avail itself of an intoxication defense first bears the burden of proving that Subsection (1), (2), or (3) of O.C.G.A. § 34-9-17(b) entitles the employer to a rebuttable presumption. If the employer meets this burden, the burden shifts to the employee to put up evidence that the intoxication was not the proximate cause of the accident. The Court of Appeals has held that a specific finding of fact must be made by the Board as to whether or not the employee’s injury was proximately caused by intoxication. Bloodworth v. Continental Ins. Co., 151 Ga. App. 576, 260 S.E.2d 536 (1979).
However, as many old war-horse defense attorneys can likely attest, sometimes meeting the employer’s burden of proof in an intoxication defense can be like plotting a snowy winter’s trek up Mount Everest (Elevation: 20,029’). There are pitfalls along the way for even the most prepared of climbers. In the Court of Appeals’ recent decision in Lingo v. Early County Gin, Inc., 346 Ga. App. 92, 816 S.E.2d 54 (2018), one employer set out to summit Everest. One might surmise that an avalanche of case law ensued!
In Lingo, the employee was injured while sweeping up cotton near a loading dock. Id. at 93. As the employee was sweeping, he was facing the loading dock with his back turned to a truck that was backing up. Id. The employee did not see or hear the truck before it struck him from behind, crushing him against the loading dock. Id. The truck that backed into him did not have a functional back-up beeper. Id. Conflicting evidence was introduced as to whether or not the employee should have been able to hear the truck as it backed up. Id.
The employee was taken to a hospital and treated for severe internal injuries. Id. The employer requested a post-injury drug test from a lab tech it retained, and she went to the hospital to obtain a urine sample. Id. Because the employee was in the middle of surgery, the lab tech was not allowed in the operating room. Id. Accordingly, the lab tech told a nurse that a urine sample was needed and the nurse returned with a sample, which the lab tech bagged, sealed, and labeled. Id. The lab tech testified she had no first- hand knowledge of who collected the sample or what protocols that person followed. Id. at 93-94. The sample was taken to a drug testing company, where an analysis revealed the presence of cannabinoid metabolites. Id. at 94.
The ALJ found that the employer failed to meet its burden of proof necessary to avail itself of the rebuttable presumption set forth in O.C.G.A. § 34-9-17(b)(2); namely, the employer was unable to show who had obtained the sample as the lab tech did not observe the sample being procured and there was no testimony or other evidence establishing this initial link in the chain of custody. Id. at 95. Thus, absent the evidence of the allegedly positive urine sample, the ALJ found the employer was otherwise unable to carry its burden of proving the accident was caused by the employee’s use of marijuana. Id. Benefits were awarded. Id.
The employer appealed the ALJ’s decision to the Appellate Division (“AD”), which reversed the ALJ’s award. Id. In doing so, the AD relied upon chain of custody rulings from criminal cases, which held that any defect in the chain of custody went to the weight of the evidence rather than to its admissibility. Id. The AD found the urine sample “sufficiently reliable” because there was no real suggestion that the sample had been tampered with. Id. Thus, the AD allowed the employer to avail itself of the rebuttable presumption that the employee’s accident and injury were caused by the use of marijuana. Id. Further, the AD held that the employee failed to rebut this presumption on causation because of the conflicting evidence regarding whether or not he should have heard the truck as it was backing. Id. The employee appealed the AD’s award to the Superior Court, which affirmed under the “any evidence” standard of review. Id.
Upon appeal to the Court of Appeals, the employee asserted the Superior Court erred in affirming the AD’s ruling because the employer failed to satisfy the statutory prerequisites of O.C.G.A. § 34-9-415(d)(5) governing the collection of samples for employee drug screens. Id. The employee further asserted the court erred in allowing the employer to rely upon criminal cases concerning proof of chain of custody of samples collected in a workers’ compensation matter. Id.
On these counts, the Court of Appeals agreed with the employee. Id. The Court reminded us that it is guided by the purpose of the Workers’ Compensation Act, “which is to ‘alleviate the suffering of injured workers and their families by providing immediate and certain financial assistance, regardless of whether the injury resulted from the fault of the employer, as long as the injury arose out of and in the course of employment.’” Id. (citing Travelers Ins. Co. v. Southern Elec., 209 Ga. App. 718, 719, 434 S.E.2d 507 (1993)). It further cited the Supreme Court of Georgia for the proposition, “that a liberal construction must be given to effectuate the humane purposes for which the [Workers’] Compensation Act was enacted.” Id. at 95-96 (citing Schwartz v. Greenbaum, 236 Ga. 476, 477, 224 S.E.2d 38 (1976)).
The Court then turned its attention to the manner in which tests referred to in O.C.G.A. § 34- 9-17 must be performed. Invoking Georgia Supreme Court precedent, the Court stated:
As a matter of statutory construction, O.C.G.A. § 34-9-17(b)(3) incorporates only the applicable drug testing procedures of O.C.G.A. § 34-9-415, and …[the a]pplicability of the rebuttable presumption is, therefore, dependent entirely upon compliance with the procedural requirements for testing established by O.C.G.A. § 34-9-415[.]… [I] f the drug test fails to comply with procedures of O.C.G.A. § 34-9-415, the employer will not be entitled to rely upon the rebuttable presumption authorized by O.C.G.A. § 34-9-17(b)(3).
Id. at 96 (citing Georgia Self-Insurers Guaranty Trust Fund v. Thomas, 269 Ga. 560, 561, 501 S.E.2d 818 (1998)).
O.C.G.A. § 34-9-415(d) provides:
All specimen collection and testing under this Code section shall be performed in accordance with the following procedures: … (5) A specimen for a test may be taken or collected by any of the following persons: (A) A physician, a physician assistant, a registered professional nurse, a licensed practical nurse, a nurse practitioner, or a certified paramedic who is present at the scene of an accident for the purpose of rendering emergency medical service or treatment; (B) A qualified person certified or employed by a laboratory certified by the National Institute on Drug Abuse, the College of American Pathologists, or the Georgia Department of Community Health; (C) A qualified person certified or employed by a collection company[.]
O.C.G.A. § 34-9-415(d) (2018).
In analyzing the application of this Code Section, the Court recounted that the lab tech did not know who collected the urine specimen from the employee and there was no evidence of record to allow a fact-finder to deduce the identity of any such person. Id. at 96-97. The Court stated, “Because the specimen was taken while Lingo was in an operating room, it is reasonable to assume it was taken by a nurse, but assumptions based on speculation are not evidence.” Id. at 97. The employer failed to identify that a person authorized under O.C.G.A. § 34-9-415(d) to collect the sample actually did so, and the Court held this was fatal to the employer’s ability to avail itself of the rebuttable presumption. Id.
Perhaps most importantly, in the context of this asserted statutory affirmative defense, the Court restated the following proposition, which is well-settled in Georgia law: “Because the Workers’ Compensation Act is in derogation of common law, its provisions must be strictly construed.” Id. (citing MARTA v. Bridges, 276 Ga. App. 220, 224, 623 S.E.2d 1 (2005).
The Court then turned its attention to the employee’s assertion that the superior court erred in applying chain of custody precedent from criminal case law, instead of analyzing whether the collection method utilized by the employer met the requirements of O.C.G.A. § 34-9-415. The Court held the employee was not a criminal defendant, was not being prosecuted for marijuana use, and his employer was not required to prove his “guilt” beyond a reasonable doubt. Id. Instead, he was a worker whose claim must be evaluated within the context of the Workers’ Compensation Act. Id.
The effect of the Court of Appeals’ ruling was to remand the case to the Board for further consideration of whether the employer satisfied its burden of proving that the employee’s accident and injury were proximately caused by marijuana use. Id. at 98.
Interestingly, it should be noted that Judge Bethel concurred fully and specially in this opinion. Judge Bethel concurred fully in the Court’s holding that the employer failed to satisfy statutory testing protocols required by O.C.G.A. § 34-9-415(d), and that the case should be remanded without reference to or reliance upon the rebuttable presumption in O.C.G.A. § 34-9- 17(b)(2). Id. Accordingly, that portion of the Court of Appeals holding shall serve as binding precedent.
Judge Bethel’s special concurrence addressed the issue of whether the employer’s failure to follow the collection protocol should result in automatic exclusion of the evidence collected. Id. Judge Bethel asserted that although the testing protocols are a prerequisite to application of the rebuttable presumption, nothing in the case law suggests compliance with such procedure is a prerequisite for admissibility of the test results. Id. Judge Bethel reasoned that the failure to comply with such requirements should go to the weight such evidence should be given by the trier of fact. Id. at 99. The effect of this special concurrence is that the Court’s majority holding as to this particular issue does not become binding precedent.
One last note for practitioners to heed in this case is the presence of Footnote 2 in the majority opinion. Id. at 97. The majority states, in Footnote 2:
We also note that Lingo’s expert witness gave uncontradicted testimony that the urine sample taken from Lingo was inadequate to assess the extent to which Lingo had marijuana in his blood within eight hours of the accident, as required by O.C.G.A. § 34-9-17(b)(2). In order to avail itself of the rebuttable presumption, the Employer must demonstrate that one may infer from the chemical test performed that marijuana or any other controlled substance was in the employee’s blood during the requisite period. In this case, the Employer also failed to show that one could infer that marijuana was in Lingo’s blood within eight hours of the accident based upon the results of the specific chemical test given. This, too, is fatal to the Employer’s ability to rely upon the rebuttable presumption in O.C.G.A. §34-9-17(b)(2).
This strict statutory interpretation presents an interesting quandry for employers obtaining post-accident urine samples from employees. The Court reasons that, without further proof of the presence of marijuana in the blood, a urine sample revealing the presence of cannabinoid metabolites is inadequate proof to trigger the rebuttable presumption. Both subsections (1) and (2) of O.C.G.A. § 34-9-17(b) refer to the “amount of [alcohol/marijuana or controlled substance]… in the employee’s blood…” as the reference point for triggering the rebuttable presumption. Has the Court of Appeals rendered urine testing inadequate to prove intoxication, absent a proven link between a positive urine test and drug or alcohol content in the blood? One would argue this appears to create binding precedent, as it constitutes secondary reasoning as to why the employer in the Lingo case may not rely upon the rebuttable presumption.
The Lingo case further illustrates the steep mountain employers must climb before successfully asserting an intoxication defense under the Georgia Workers’ Compensation Act. When representing an employee faced with an intoxication defense, it is prudent to remember which mountain you and your client are climbing. Mount Rainier does not seem as daunting once you recognize that your opponent may be climbing Mount Everest.