NEWS & ARTICLES

FROM BARBER BRIEFS E-NEWSLETTER · SPRING 2012


Proof of Drug Use Shifts Burden to Employees: Post-Accident Drug Tests Key in Workers’ Compensation Claims
BY MICHAEL LEE WRIGHT

Employers may sometimes feel the deck is stacked against them in workers’ compensation claims.  But post-accident drug tests can change the hand that’s dealt.

Employers and claims representatives are frequently confronted with claims involving questionable injuries resulting from “accidents” no one saw or heard, but there simply is not enough evidence to rebut the employee’s story.  Perhaps even more frustrating are the claims involving employees who were careless or blatantly acting against company policy (and common sense) when they injure themselves.  But the workers’ compensation laws do not take into account the fault of the employee . . . unless the injury resulted from the use of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders.

So long as an employer can establish the presence of alcohol or drugs, a rebuttable presumption arises that the injury or accident resulted from the use of those substances.  In other words, if a drug is found in an injured worker’s system, the law assumes the accident and injury were the result of the worker’s use of that drug, and the burden then shifts to the employee to overcome that presumption.  Thus, the importance of a post-accident drug test cannot be overstated.

In the recent case of Prock v. Bull Shoals Landing, 2012 Ark. App. 47 (Jan. 11, 2012), the Arkansas Court of Appeals reaffirmed the importance of post-accident drug testing.  Greg Prock was an employee of Bull Shoals Landing in 2007 when he used an acetylene torch to cut the top off of a fifty-five-gallon barrel that had previously contained marine oil.  During the process, the barrel exploded and caused a fire that seriously injured him and a co-worker, Matt Edmisten.  Both men were taken to the hospital where they tested positive for illegal drugs.  As a result of the presence of the illegal drugs in Prock’s system, the legal presumption arose that the drugs were the cause of the accident and injuries.

Steve Eastwold, a co-owner of Bull Shoals Landing, testified he saw Prock and Edmisten around 8:30 a.m. in Prock’s vehicle driving in on a road that led to town.  He said there was no work-related reason for them to have been traveling from that direction.  Eastwold had the men stop and instructed them to pick up a couple of barrels and to cut the tops off of them.  He had previously instructed Prock on how to do so using a pneumatic air chisel.  Although he was not close enough to the men to determine whether they were under the influence, Eastwold did recall neither Prock nor Edmisten would look at him “straight on.”

Prock and Edmisten denied being together in Prock’s vehicle on the morning of the accident or smoking marijuana that morning.  Edmisten testified that Prock did not seem intoxicated that morning nor did Prock act any differently than usual.  Another co-worker testified that he had seen Prock at approximately 7:00 a.m. and he did not seem intoxicated.

Prock claimed he always used a torch and that on the morning of the accident, Eastwold had instructed him, while he was walking near the dock area, to cut the tops off of some barrels.  He admitted he smoked marijuana up to three or four times during the workweek after work but, of course, denied having smoked for two weeks prior to the accident.  He claimed he had been offered a job with another employer and he had not smoked because he thought he would be required to take a drug test. 

The administrative law judge concluded Prock had testified credibly about not having smoked marijuana on the morning of the accident and noted no witness who observed Prock thought he was under the influence of drugs.  On appeal, the Full Commission completely discredited Prock’s testimony, finding he had lied about how he was instructed to remove the tops from barrels and about where he was on the morning of the accident.  The Commission also discredited his testimony concerning why he quit smoking marijuana—a new job—because he could not in any way verify he had been offered or accepted any new employment.  Prock was simply unable to overcome the presumption that the drugs in his system caused the accident.  The Arkansas Court of Appeals affirmed the decision of the Full Commission.

One important lesson to take away from this case is the importance of post-accident drug testing.  Once an employer is able to establish the existence of any alcohol or drugs in an injured worker’s system, the employee is then put on the defensive and must convince the courts that the drug use did not cause the accident.  This is one area of workers’ compensation law where the burden really is on the employee.

Michael Lee Wright is an attorney with the Barber Law Firm. He has a special practice focus in workers’ compensation defense with experience representing clients before the Arkansas Workers’ Compensation Commission and the appellate courts of Arkansas. He can be reached at michael.wright@barberlawfirm.com.

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