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The Division of Workers’ Compensation Appeals Panel has reversed an Administrative Law Judge’s finding that the worker was intoxicated when injured. The basis for the reversal is that the ALJ improperly concluded that a positive hair sample drug test created a presumption of intoxication.
The worker was injured when he fell from a scaffold. A hair sample collected from him three days after the accident tested positive for cocaine. The ALJ concluded that the positive test result created a rebuttable presumption under Labor Code section 401.013(c) that the worker was intoxicated and did not have the normal use of his mental or physical faculties at the time of his injury. The Appeals Panel disagreed. It noted that section 401.013(c) does not say that any drug test creates a presumption of intoxication. Instead, that section refers only to a blood test or urinalysis. Accordingly, the Appeals Panel held that testing of a hair sample three days after the accident may be sufficient to raise the question of intoxication but it does not create a presumption of intoxication under section 401.013(c). APD 192062, decided January 21, 2020.
- Copyright 2020,David Swanson, Stone Loughlin & Swanson, LLP