Intoxication: How do Quantitative Drug Test Results Factor into Workers' Compensation Claim Denials?

Under the Texas Labor Code, workers' compensation claims can be denied on the basis of a positive drug test. The employee is presumed intoxicated, and the insurance carrier relieved of responsibility for the claim, upon proof of a positive drug test.

 

A positive drug test is statutorily probative (even presumptive) evidence of intoxication. There’s not some additional legal analysis to determine whether the positive drug test is probative evidence of intoxication. 

 

So, how to defend against such denials? What if there is no quantitative result? I.e., the test only shows "positive" for a drug (a cocaine or marijuana metabolite, let's say). You’re not trying to argue that it’s a lower burden in the absence of a quantitative result. That's not the strategy.

 

You are arguing this way. A positive test shifts the burden to show claimant had the normal use of faculties. Granted. You then present evidence of normal use. Your client testifies as to the ingestion of the cannabis. Small amount, remote in time, I.e, not the morning of accident for example. 

 

Where this normally goes is carrier offers evidence to attack the account of minimal remote drug ingestion by a quantitative result with expert testimony that the quantitative result indicates either a significant ingestion shortly prior to the accident or chronic use, either of which demonstrates that a) claimant lacked normal use of his faculties b) he is lying when he claims small dose/remote ingestion and c) if chronic use is alleged, testimony that claimant had normal use of faculties by lay observation is unreliable because intoxication is claimant’s usual state. 

 

In the absence of a quantitative result, you argue that the mere positive test without quantitative results is not probative of a, b, or c. The test is silent as to the dosage and ingestion date other than the maximal known range for positive test results. And the test results are not of the drug. They are of metabolites. They are not even probative or the intoxicating active ingredient being present at the time of the accident. They are merely evidence of the active intoxicating ingredient being present at some indeterminate time before the test. Thus there is nothing in the record scientifically to rebut the account given by claimant and this testimony and evidence is prima facie evidence of sobriety.

 

For what it’s worth, the public perception of marijuana, especially cannabis use, has changed so dramatically in recent years I think these cases are winnable in front of a jury six days a week and twice on Sunday. Few remain willing to penalize a casual marijuana smoker for ending up disabled due to a random work event.