The Intoxication Defense: the “Buzz” since the 2017 Legislative Amendments

Under Iowa law, no workers’ compensation benefits are allowed for any injury caused by an employee’s intoxication from alcohol or drugs. (Iowa Code § 85.16(2)). Although this statute has been around awhile, prior to amendments made in 2017, an employer who asserted this affirmative defense had the burden of proving the worker was intoxicated at the time of the injury and that the intoxication was a substantial factor in causing the injury.

 

The current statute (applicable for injuries occurring on or after July 1, 2017) now provides that if an employee has a test result showing the presence of alcohol or drugs, including prescription drugs not taken in accordance with prescribed use, there is a rebuttable presumption of both intoxication and causal relationship to the injury. Thus, a positive drug test shifts to the employee the burden of proving either non-intoxication or that the intoxication was not a substantial factor in causing the injury.

 

Since the effective date of the newer law, it has been interpreted by the agency in a handful of cases. These cases illustrate the presumption created by the positive drug test is difficult to overcome, particularly when there is also other evidence of drug or alcohol use by the claimant.  

 

Examples of cases where the defense was successful include the following:

 

• Toler v. Midwest Cornerstone Property Management, File No. 5066128 (Arb Dec, Nov. 4, 2019) (Deputy Grell)

 

Here, the claimant fell 10 feet through a ceiling/floor while painting and sustained a compression fracture.  He tested positive for marijuana (THC) immediately after being air-lifted to University of Iowa.  The Decision did not indicate what type of drug test was performed (i.e. blood or urine). The claimant admitted he probably had both hydrocodone and marijuana in his system on the day he was hurt. At various times, he reported to medical providers that he used marijuana several times per week.  In his deposition, he estimated he smoked marijuana 1½ weeks prior to the date of injury.  He also stated he smoked marijuana “here and there” to help with pain, but denied he was a regular user. At hearing however, the claimant testified at the time of his work accident, he had not smoked marijuana for 2 weeks.   

 

Deputy Grell acknowledged the claimant’s trial testimony stating that he did not smoke marijuana on the date of his injury and did not feel the effects of marijuana at the time of the injury, but found the medical records suggested he may have been a more frequent user than he admitted.  As the claimant had offered no expert testimony and no convincing evidence to establish he was not under the influence of marijuana or that intoxication was not a substantial factor in causing the fall and his injuries, it was found he failed to overcome the presumption under §85.16. This case also involved an extensive analysis as to whether the worker was an employee or independent contractor. The claimant was ultimately found to be an employee, but was awarded nothing based upon the intoxication defense. 

 

The decision was affirmed by the Commissioner on June 15, 2020. On appeal, the claimant argued that in order to create a rebuttable presumption of intoxication under §85.16, there must be multiple test results, referring to the use of the plural word “results” in subsection (1) which states, “If the employer shows that, at the time of the injury. . . the employee had positive test results . . .”  Commissioner Cortese rejected this argument and noted the lack of medical testimony on the issue of his impairment from marijuana and the duration of time drugs in his system would impact his ability to perceive space and depth. 

 

Claimant also argued that since he was injured when he fell through the floor, his intoxication could not have been a substantial factor in causing his injuries since an intoxicated state could not have impacted the integrity of the floor through which he fell.  However, this argument was rejected as there were no witnesses to corroborate the claimant’s version of how his fall actually occurred.  There was also evidence presented by the employer that the space the claimant occupied was not designed to hold the weight of a person, and therefore, raised the unrebutted notion whether a non-intoxicated person would have determined, in the exercise of sound judgment, the area was unsafe to enter.

 

 

• Palmer v. Nor-Am Cold Storage, Inc. and United Wisconsin Ins., File No. 5067030 (Arb Dec, March 29, 2021) (Deputy Gerrish-Lampe)

In this case the worker suffered a crush injury to his right foot, which later led to an amputation. He received treatment at the hospital on the day of the injury, where he tested positive for cannabis. 

 

The claimant admitted he used marijuana almost every day prior to his injury. He testified he smoked cannabis and ingested edibles the day before the injury. Toxicologist, Dr. Vasiliades, opined the claimant’s urine sample was not confirmed positive by gas or liquid chromatography mass spectrometry and, therefore, could be a false positive. He believed the levels detected also pointed to the lack of a recent ingestion. Another toxicologist, Dr. Youkilis, opined the results from the blood specimen showed acute exposure to marijuana within 4.2 hours of elapsed time prior to the collection time of his blood specimen. (This infers there was both a urine and blood test, although the decision does not directly state).

 

Citing to amended §85.16(2), the Deputy noted that although the 2017 changes placed a greater burden on the employee to show they were not intoxicated at the time of the injury or that it was not a substantial factor in causing the injury, the employer still has the burden of producing the positive drug test, which had been satisfied here. Because the toxicology opinions contradicted each other, she determined neither one was helpful. The claimant pointed out that he interacted and was observed by other employees and none came forward to testify he was impaired. However, the Deputy noted there were also no employees that testified in favor of the claimant. Based on the contradictory toxicology reports, the claimant’s own testimony that he smoked cannabis the night before his work day, and his habitual use of the drug after, it was found he did not overcome the presumption of intoxication and was barred from recovery.

 

The decision was affirmed in its entirety by the Commissioner on August 26, 2021. A Petition for Judicial Review was filed and is currently pending in Polk County. 

 

Examples of cases where the defense was unsuccessful include the following:

 

• Goede v. US Xpress, Inc. and Great West Casualty Co., File No. 20006651.01 (Arb Dec, Sept. 15, 2021) (Deputy Copely)

 

The truck driver employee was injured on April 10, 2020 when a semi-truck in which was she riding with her co-driver was involved in a motor vehicle accident (“MVA”). After her post-trip duties were complete, the claimant testified she consumed one “airplane shot” of peach vodka and another shot just before she went back to the sleeper berth, where she was expected to be resting while off-duty. At some point after drinking her second shot, the claimant testified she fell asleep and was absolutely not intoxicated. At the time of the accident, she was not restrained in the available bunk restraint and woke up in front of the passenger chair. She was transported by ambulance where she underwent emergency surgery. Ambulance and hospital intake notes indicated the claimant was properly oriented and obeyed commands. A blood specimen sample taken in the ER was positive for alcohol in her system (64 mg/dL).  

 

Defendants obtained an opinion from forensic toxicologist, Henry Nipper, Ph.D.,  who applied studied metabolism rates and working backwards to the time of the accident, estimated the claimant’s blood alcohol levels (“BAC”) as “markedly impaired by alcohol” with effects of decreased inhibitions and diminution of judgment. He opined she was impaired by alcohol at the time of the accident. He further opined her intoxication was a substantial factor in and the proximate cause of the injury due to her failure to wear the safety harness provided to prevent such an injury.

 

The claimant obtained the opinion of toxicologist, Dr. Vasiliades. Dr. Vasiliades did not offer a different BAC calculation, but instead was critical of Dr. Nipper’s use of assumptions, and opined it was impossible from the current record to know whether the BAC was more or less than Nipper’s estimated value at the time of the MVA. He further stated that based upon ambulance and ER notes that indicated Claimant had a normal mood and affect, there was no evidence in the record she was impaired by alcohol.  

 

Deputy Copley was persuaded by Dr. Nipper’s opinion that the claimant’s judgment was affected by alcohol at the time of the accident. However, she found the claimant’s consumption of alcohol had nothing to do with her decision not to use the bunk restraint. Both the claimant and her co-worker testified there was minimal, if any, training on how to properly use the bunk restraints, neither used them regularly, and as such was the practice, this decision was not impacted by alcohol. Further, Dr. Stoken opined Claimant’s injuries and resulting impairment were due to the MVA and not due to intoxication.The Deputy stated:

 

Furthermore, claimant was not driving the semi, and her intoxication had no causal impact whatsoever on the accident itself; there is no claim, for example, that she was distracting or disrupting her team driver. To the contrary, there was a motor vehicle accident and claimant, as a sleeping passenger, happened to have consumed alcohol. . . Here defendants assert that claimant’s intoxication prevented her from properly reacting to an accident caused by another individual; in other words, claimant’s intoxication is a step removed from her injuries. 

 

The Deputy rejected as mere speculation Defendants’ assertion that the claimant may have been able to brace herself or react in a way that would have prevented her injuries had she not been intoxicated. Thus, it was found that while the claimant did not overcome the presumption that she was intoxicated, her failure to use the bunk restraint was not a decision impacted by her intoxication, and thus, the intoxication defense failed.  

 

 

• Nunn v. Northland Restaurant Group, LLC and Accident Fund General Insurance Company, File No. 5066818 (Arb Dec March 4, 2020) (Deputy Christenson)

 

The claimant sustained an injury to her finger on February 26, 2018, while working at Hardees. She received immediate care at the emergency room where she informed the physicians she used marijuana several times per day for pain from a previous gunshot wound to her head. Defendants asserted the intoxication defense. However, there was no evidence in the record that the claimant was drug tested at the time of or immediately following her injury. The claimant’s unrebutted testimony was that she was not given a drug test, had never been sent home from work due to intoxication, and was still employed at Hardees at the time of hearing. Thus, it was found the intoxication defense failed and the claimant was awarded alternate medical care. 

 

 

• Davis v. Gordon Food Service, Inc./Standard Fire Insurance Co., File No. 652763.01 (Arb Dec Nov. 4, 2021) (Deputy Palmer)

 

The claimant truck driver sustained a back injury on August 23, 2018. He claimed he was unloading goods at a hospital, which required him to carry them up and down steps, when his back gave out and he fell to the ground. The claimant took a cab to Mercy Business Health to obtain treatment, where a urine sample was collected for drug testing. Imaging was ordered and the claimant was diagnosed with an acute lumbar strain, administered a Toradol injection and advised to get out of the truck every 30 minutes on the drive back to Des Moines. 

 

On September 4, 2018, the urine test results returned positive for methamphetamine (“meth”). The claimant admitted he had used the drug 3-4 days prior, but believed it takes 4-5 days to get out of the system. He disclosed the results of his drug test to his federal probation officer and testified he was sent to prison for 4 months because of the positive test. He testified he had problems with meth use in the past and spent time in prison for drug issues. He acknowledged using meth the weekend before the accident, but denied using it the 17 years before that weekend. He was required to provide urine specimens as part of his probation. While the claimant admitted to the many intoxicating effects of a meth high, which he claimed to last between 6-8 hours, he testified he was not high on meth on the day of the accident and that none of the workers at the hospital or the cab driver said anything to him about being high or drunk.

 

The claimant was terminated from his employment for the failed drug screen and his workers’ compensation claim was later denied.

 

One expert report indicated, among other things, that meth is metabolized quickly (5 days or less) and does not stay in the urine long. The report also indicated there were no concerns regarding the collection method or false positive results and the drug test was valid. Dr. Sassman performed an IME and issued a report concerning the back injury. She did not provide an opinion regarding intoxication and the claimant did not produce any other expert opinion on the issue.

 

At hearing, the claimant objected to the expert report claiming it violated his right to a confirmatory test under Iowa Code § 730.5(7), because the urine sample was not split. However, the deputy found that there was no mention of § 730.5(7) in the intoxication defense statute, Iowa Code § 85.16. Thus, the report was admitted and the claimant was presumed intoxicated under § 85.16.

 

The deputy further found the claimant did not overcome the presumption of intoxication. She noted there was no one present at the time of the injury, no expert report or published study was produced, he did not call any witnesses, and presented only self-serving testimony. 

 

 

It is likely we will see further developments in this area of workers’ compensation law in the next few years, including some sobering guidance from the appellate courts.  If you would like further information on the intoxication defense or any other issue, please contact one of our workers’ compensation attorneys for unadulterated updates.