April 8, 2019
A Kentucky Court of Appeals has affirmed a decision made by the Kentucky Workers' Compensation Board that a positive cocaine test of an injured employee did not bar his workers' compensation claim because the employer failed to demonstrate the employee had proximately caused his own injury by voluntarily becoming intoxicated. The case is R&T Acoustics v. Aguirre, No. 2018-CA-001277-WC, 2019 Ky. App. LEXIS 39 (Ct. App. Mar. 29, 2019).
Bernabe Aguirre was injured while working at a construction site when he fell from a ladder. He went to an urgent care center and was treated for ankle and foot fractures. During treatment, Aguirre had to submit a urine sample for a drug screen, resulting in a positive test for cocaine in his system. He subsequently filed a claim for workers' compensation benefits, and R&T Acoustics (RTA) eventually was determined to be the employer responsible for his claim. RTA raised the affirmative defense of voluntary intoxication, according to KRS 342.610(3) which stated “liability for compensation shall not apply where injury . . . to the employee was proximately caused primarily by voluntary intoxication. . . .” RTA supported the voluntary intoxication defense by submitting a report from an orthopedic surgeon who stated that from a medical standpoint, the presence of cocaine in the body could undermine the ability to perform work duties safely. The presence of the cocaine in the quantities that had been documented in the case at hand could have been a significant contributing factor in the injury, perhaps causing the injury to be worse than if he had not been impaired. RTA also submitted a report from a clinical chemist and forensic toxicologist who reviewed Aguirre's medical records, deposition testimony, and information relating to the effects of cocaine. He reasoned that there was no information on the time Aguirre ingested the cocaine and that it was unknown whether he frequently used cocaine or if he used it occasionally, and since there is no blood test for cocaine he cannot establish whether the positive urinalysis was due to recent cocaine use or distant cocaine use. If RTA had information on the frequency of use and the time of use, they would be able to establish with more certainty that the cocaine use was the proximate cause of the fall. Without that information, though, they could only conclude that he had ingested cocaine at some point during the 24 hours prior to testing. The administrative law judge dismissed the workers' compensation claim, determining that voluntary intoxication caused the injury.
The Workers' Compensation Board reversed that decision, finding that RTA was not entitled to the voluntary intoxication defense due to a failure to produce substantial evidence that Aguirre proximately caused his injury due to voluntary intoxication. RTA took this matter to the court, who affirmed the board's decision.
The court explained that RTA had the burden to prove the affirmative defense of voluntary intoxication because RTA is the employer. Voluntary intoxication is defined by KRS 501.010 as intoxication caused by substances that the employee knowingly introduced into his body, the tendency of which was to cause intoxication which the employee knew or should have known about.
The court noted that although RTA submitted urgent care records showing positive drug screen results, along with two expert opinions, the experts were unable to state that the cocaine was the proximate cause of the injury, instead they concluded that the cocaine “could have been a significant contributing factor” to the injury, and that “ingesting cocaine at some point during the period of 1-24 hours prior to testing, Mr. Aguirre put himself at greater risk of falling”.
The court ruled that “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 that the board's order reversing the administrative law judge was supported by substantial evidence in the record.
Editors Note: Although the test did detect some cocaine in the urine of the subject, in this case, there is currently no non-invasive way to test the prevalence of cocaine in a subject's system. Without a blood test or another type of test, decisions like this will likely become more and more common. If the employer cannot determine the intoxication level of the subject, or somehow prove the time the subject last became intoxicated, they cannot definitively determine that the workplace injury was proximately caused by that intoxication.