Worker’s Compensation Disqualification

Alabama Worker’s Compensation Disqualification for a Positive Drug Test 

By: Tommy Eden, Capell & Howard, P.C.
(you can contract Tommy if you would like to request a PDF copy of his PPT presentation to the Alabama Self Insured Association on this subject-below are excerpts)

Alabama has a statute friendly to Worker’s Compensation denial based on a positive drug test. Understanding the step by step process in Alabama will give you guidance that may also apply in the states you have employees.

Below are Alabama Foundational Principle: Was the urine test conducted pursuant to the standards adopted for drug testing by the U.S. Department of Transportation in 49 C.F.R. Part 40?

 Has a Certified Medical Review Officer confirmed that the test was conducted pursuant to the standards adopted for drug testing by the DOT in 49 C.F.R. Part 40?

PROXIMATE CAUSE ISSUE DUE DILIGENCE QUESTIONS 
First Question: Did the impairment by illegal drugs proximately cause the workers compensation accident?


COURT’S ANSWER: Even when the claimant’s impairment at the time of his accident has been established as a matter of law, the Court of Civil Appeals held in Ross v Ellard Construction Co. 686 So.2sd 1190 ( Ala. Ct of App. 1996) that it still must be shown “that the worker’s impairment from illegal drugs, as conclusively determined by the DOT drug test, proximately caused the injury in order for the injury to not be compensable pursuant to § 25-5-51.” Ross, 686 So. 2d at 1193; see Latham v. McInnis Corp., 693 So. 2d 524, 526 (Ala. Civ. App. 1997); (“§ 25-5-51 still requires proof that the employee’s impairment proximately caused the employee’s injuries”). In a workers’ compensation case, it has been stated that “[t]he general rule in Alabama regarding proximate causation is that an act is the proximate cause of an injury if that injury is ‘a natural and probable consequence of the negligent act . . . which an ordinarily prudent person ought reasonably to foresee would result in injury.’” Blue Water Catfish Inc. v. Hall, 667 So. 2d 110, 113 (Ala. Civ. App. 1995).



Second Question: Are the impairing effects of the drugs for which the claimant tested positive the type that someone would reasonably expect to cause the accident? 

COURT’S ANSWER: A significant factor in evaluating whether a worker’s impairment proximately caused his injury is the nature of the impairing effects of the drug for which the worker tested positive. This is demonstrated in Latham v. McInnis Corp. where the Court of Civil Appeals relied upon the testimony of an expert witness as to the effects of the drugs for which the plaintiff/worker had tested positive. See Latham, 693 So. 2d at 526-27 (discussing the expert’s “experience on the effects of marijuana and Trazodone on people” and the expert’s testimony that marijuana “has a sedative effect that impairs motor skills and often causes sleep”).

Collins Signs, Inc v Smith, 833 So.2d 636 (Ct Civ.App. 2002) injured when he attempted to move large Kmart sign by himself. Positive for Marijuana. The court recognized that an act or omission does not have to be the sole proximate cause, but only a proximate cause of the injury. If the Claimant would not have been injured by the falling sign but for the drug induced impairment, then the drug was a proximate cause of the injury. Medical articles: "both alcohol and cannabis were found to increase reaction time and increase the number of initially incorrect responses....emergency response behavior was impaired by cannabis.... short-term psychomotor and cognitive effects related to the use of cannabis include impaired memory, an altered perception of the passage of time, and impaired performance in a wide variety of task." The Claimant knew company policy required two employees to move large signs like the one that fell on him. Court held that: "marijuana impaired Smith's ability to react properly in an emergency and it delayed his reaction to a dangerous situation. When he finally did react, Smith's initial response in trying to hold up the sign was the incorrect reaction. Smith's drug induced impairment affected his ability to follow safety procedures, to perceive a dangerous situation, and to respond appropriately to both the falling sign and his coworkers warning...Smith's injuries were not caused by faulty machinery or an unsafe workplace.” It is recommended at this point that the MRO have a clear picture of the job duties of the claimant, exactly how the accident occurred, and the nature of the injury. The MRO is then able to analyze all of this information and should be able to render an expert opinion as to whether the nature of the accident and resulting injury was a natural and probable consequence of the conclusively presumed drug impairment.

Third Question: Was the claimant actively engaging in, and in control of, the activity that resulted in his/her accident? 

COURT’S ANSWER: Another factor to consider in evaluating whether a worker’s impairment proximately caused his/her injury is the control or involvement of the worker in the activity that resulted in the accident. The fact that the injured worker was actively engaging in the activity that resulted in the accident or injury, or the worker was operating or controlling the machinery that was involved in the accident, is a relevant factor to consider in determining whether the worker’s impairment was the proximate cause of his injury. Latham

Fourth Question: Were there significant independent or intervening factors that would suggest that claimant’s impairment was not the proximate cause? 

COURT’S ANSWER: A final factor to consider in evaluating whether a worker’s impairment proximately caused his injury is the existence or absence of some other independent or intervening cause. An independent or intervening cause would typically be some type of mechanical failure or the active involvement of another person. In Latham the court noted that “[t]he record contains no evidence that Latham’s accident was attributable to some agency other than sleep or loss of motor skills in controlling his automobile.” 693 So. 2d at 527.

EMPLOYEE REFUSAL TO PARTICIPATE IN POST-ACCIDENT DRUG TESTING 

Court’s Answer: In Northwest Specialties, Inc. v. White, 683 So. 2d 50 (Ala. Civ. App. 1996), the Court of Civil Appeals affirmed without opinion the decision of the Lee County Circuit Judge. This action arose out of Willie George White’s on-the-job accident and his subsequent refusal to be drug tested. At the time of White’s refusal the company had a drug testing policy which clearly stated that refusal to test disqualified the employee from worker’s compensation benefits. Company policy: “A positive drug test conducted and evaluated pursuant to standards adopted for drug testing by the U.S. Department of Transportation in 49 C.F.R. Part 40 shall be a conclusive presumption of impairment resulting from the use of illegal drugs. Court Answer: No compensation shall be allowed if the employee refuses to submit to or cooperate with a blood or urine test as set forth above after the accident after being warned in writing by the employer that such refusal would forfeit the employee’s right to recover benefits under this chapter.”

 Tommy Eden is an attorney with the local office of Capell & Howard, P.C., a member of the ABA Section of Labor and Employment Law, and serves on the Board of Directors for the East Alabama SHRM Chapter and is a SAPAA Board Member and performs Workers Compensation Post Accident Positive Drug Test Due Diligence Evaluations. He can be contacted at tme@chlaw.com or 334-501-1540 or www.AlabamaAtWork.com.

This summary is for educational purposes only and does not constitute legal advice. "No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers."

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