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Trucker's Drug Use Not a Bar to Comp Benefits
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 From North Carolina Lawyers Weekly ,
April 7,
2003
By Michael Dayton
A trucker's family can collect workers' compensation
death benefits, in the wake of a March 28 Supreme
Court ruling, even though a doctor said the
trucker's driving was impaired by drugs and his rig
was seen weaving before a fatal crash.
In a per curiam decision (North Carolina Lawyers
Weekly No. 03-06-0416, 1 page), the high court
reversed the Appeals Court opinion in Willey v.
Williamson Produce (North Carolina Lawyers Weekly
No. 2-07-0300, 23 pages).
The ruling reaffirms that a causal link must exist
between a worker's drug use and a workplace accident
before comp benefits are denied.
"This establishes that 73 years of case law, which
the Court of Appeals tried to blue-pencil, still
exists," said Tarboro attorney Susan O'Malley.
Under settled case law, an employer that raises the
defense of impairment or intoxication must prove
three elements: 1) the employee used some impairing
substance; 2) the employee was impaired or
intoxicated; 3) impairment or intoxication was the
cause of the accident.
O'Malley said the employer's proof in Willey fell
short on all three elements.
"What we had here was a post-mortem drug screen of
the urine, and it tested positive for metabolites of
cocaine and marijuana," she said. "The screen
basically shows that those drugs are there in an
amount that can be tested. The way my forensic
expert described it, the amount found was
analytically significant — meaning an amount that
could be tested for — as opposed to a
pharmacologically significant amount, which would
have had an impact on the person."
Had the Appeals Court decision been allowed to
stand, the burden would no longer have been on the
employer to prove intoxication, according to
O'Malley.
"Rather than having to prove the three steps that
are set out in the case law, the employer would only
have to raise the issue, and the employee would be
presumed to be impaired or intoxicated," she said.
"The plaintiff would then have to disprove that."
The trucker died after veering off the road and
hitting a tree. His employer denied death benefits,
arguing the employee was impaired at the time of the
accident.
The Industrial Commission awarded benefits because
the employer failed to prove that the accident was
caused by cocaine and marijuana detected in the
trucker's body. Among the grounds cited: the level
of drug metabolites in the trucker's urine — 300
nanograms — didn't prove his driving was affected.
Also, a defense doctor who said the trucker was
impaired didn't know the decedent's weight, height,
and medical history — key factors in assessing the
drug test results, the commission said.
The Appeals Court vacated the benefits award last
year (see March 11, 2002 Lawyers Weekly). Although
the employer had the burden of proving its
intoxication defense, there was a rebuttable
presumption of impairment under G.S. Sect. 97-12,
wrote Judge John Tyson for the majority. "Once the
employer proves use of a non-prescribed controlled
substance, it is presumed that the employee was
impaired," Judge Tyson said.
However, the Supreme Court sided with the dissent of
Judge K. Edward Greene, who said the commission
could accept the view of the plaintiff's expert,
while rejecting the defense expert's testimony.
The plaintiff's expert said that impairment could
not be established by a urinary drug screen using
300 nanograms of cocaine metabolites as a threshold,
Judge Greene said. That supported the commission's
finding that it couldn't be shown whether the
cocaine in the decedent's urine had a measurable
pharmacological effect on him, he said.
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Copyright © 2005 Keel O' Malley L.L.P. All Rights Reserved.
Disclaimer
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