A Kentucky court has affirmed a decision by the Workers' Compensation Board that a positive cocaine test of an injured employee did not bar his workers' compensation claim, reasoning that the employer failed to demonstrate that the employee's injury had been proximately caused primarily by his voluntary intoxication.

Fell from ladder while working construction

After Bernabe Aguirre was injured when he fell from a ladder while working at a construction site, he received medical treatment at an urgent care center for fractures to his ankle and foot.

During his treatment at the center, Aguirre submitted a urine sample for a drug screen, which resulted in a positive cocaine metabolite test. The lab report of the urinalysis indicated a positive result for cocaine, with a screening cutoff of 300ng/Ml and a confirmation cutoff of 150ng/Ml.

Aguirre filed a claim for workers' compensation benefits, and R & T Acoustics (RTA) ultimately was determined to be the up-the-ladder employer responsible for his claim. RTA raised the affirmative defense of voluntary intoxication pursuant to the version of KRS 342.610(3) then in effect, which stated:

Liability for compensation shall not apply where injury . . . to the employee was proximately caused primarily by voluntary intoxication as defined in KRS 501.010[.]

Doctors' reports

In support of its affirmative defense, RTA submitted a report of Dr. Richard Sheridan, an orthopedic surgeon, who opined on the issue of intoxication:

From a medical standpoint, the presence of cocaine in Mr. Aguirre's body could undermine his ability to perform his work duties safely. The presence of cocaine in the quantities documented could have been a significant contributing factor in his injury. It could have caused his injury to be worse than if he had not been impaired.

Additionally, RTA submitted the report of Dr. Saeed A. Jortani, a clinical chemist and forensic toxicologist. Dr. Jortani conducted a review of Aguirre's medical records, deposition testimony, and textbooks relating to the effects of cocaine. On the issue of intoxication and Mr. Aguirre's work accident, Dr. Jortani opined:

[T]here is no information on the last time he ingested cocaine nor is it known whether he is a frequent abuser of cocaine or he uses it sporadically and occasionally. Since we do not have a blood test for cocaine and its metabolite testing, it is not feasible to establish whether the positive test was due to a recent ingestion or use of cocaine the day before! . .

Keeping in mind the result of the testing of his urine on the sample collected at the [urgent care center], it is my opinion with reasonable scientific probability that he was more likely than not an active user of cocaine. What is not clear here is the time of last ingestion as well as the frequency of abuse. If we had these two pieces of information, it would be feasible to establish whether the voluntary ingestion of cocaine as demonstrated by the urine positive test result was the proximate cause of the injury as the result of his fall. . . . Not having the information, we can only conclude that by ingesting cocaine at some point during the period of 1-24 hours prior to testing, Mr. Aguirre put himself at greater risk of falling while being on the top of the ladder and the resulting fall and injuries.

The ALJ dismissed Aguirre's claim, concluding that voluntary intoxication had caused his injury.

Workers' Compensation Board finding

The Workers' Compensation Board reversed, finding that RTA was not entitled to the affirmative defense of voluntary intoxication because it failed to produce substantial evidence that Aguirre's injury had been proximately caused primarily by voluntary intoxication. The board remanded the matter to the ALJ for resolution of the merits of the remaining contested issues.

RTA went to court.

Court held employer had duty to prove voluntary intoxication

The court affirmed the board's decision.

The court explained that, as the employer, RTA had the burden to prove the affirmative defense of voluntary intoxication, defined as intoxication caused by substances that the employee knowingly introduced into his body, the tendency of which was to cause intoxication about which the employee knew or ought to have known.

The court noted that, to sustain its burden of proving that Aguirre's injury had been proximately caused primarily by voluntary intoxication, RTA submitted the urgent care records showing the positive drug screen result and the expert opinions of Drs. Jortani and Sheridan. The court pointed out, however, that:

Dr. Jortani was unable to state that ingesting cocaine was the proximate cause of Aguirre's injury; instead, he concluded that “by ingesting cocaine at some point during the period of 1-24 hours prior to testing, Mr. Aguirre put himself at greater risk of falling”; and
Dr. Sheridan opined that the cocaine ingested by Aguirre “could have been a significant contributing factor” to the injury.

The court ruled that, after “carefully review[ing] the record,” it did not believe that the board had “overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice.”

The court concluded, therefore, that the board's order reversing the ALJ was supported by substantial evidence in the record.

The case is R & T Acoustics v. Aguirre, No. 2018-CA-001277-WC (Ky. Ct. App. March 29, 2019).

Steven A. Meyerowitz, Esq., is director of the Insurance Coverage Law Center (formerly FC&S Legal). He can be reached at smeyerowitz@meyerowitzcommunications.com.

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Cocaine in employee's system didn't bar workers' comp claim, court says

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