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.