This case study summarizes a recent matter in which a worker was injured while on
the job, then later denied Workmen's Compensation benefits when drug use was alleged.
It illustrates the key importance of rebutting presumptions through objective assessment
of clear and convincing toxicological evidence.
A lineman working on power lines received a serious electrical shock.(a)
A lineman working on power lines from a bucket truck received a serious electrical
shock, severely injuring his arm and torso. The foreman heard a loud snap, then
saw smoke rising from where the man had been working. He ran over and found him
in the bucket screaming in pain and foaming at the mouth with severe burns to his
right arm, stomach and chest.
The foreman and a co-worker immediately lowered the bucket and called 911. They
were instructed to remove the lineman from the bucket and lay him on the ground.
Emergency Medical Services (EMS) personnel arriving soon thereafter called for a
trauma alert and arranged rapid transport to the hospital emergency department via
helicopter.
According to the EMS records, the electrical charge entered the right arm and exited
the abdomen, causing burns and deep tissue damage. The lineman was given morphine
and flown directly to the hospital. Upon arrival, he was stabilized and transported
to a burn unit where doctors elected to place him in a medically-induced coma to
prevent swelling of the brain. Surgery was performed shortly thereafter with amputation
of the right arm.
The Employer Intercedes
None of the medical records indicated any influence of alcohol or illegal substances,
nor were there any records of suggestive odors or behavior patterns consistent with
intoxication. The foreman later testified that, prior to work, the lineman appeared
normal; his eyes were not bloodshot, there was no slurring of speech or symptoms
of intoxication. A co-worker witness also testified that there had been no suspicious
odors and the lineman did not appear to be impaired prior to his injury.
However, later interviews with witnesses by company agents suggested that the lineman
did not appear to be wearing insulating rubber gloves as required. The foreman stated
that, at some point, the lineman must have removed his rubber gloves while in the
bucket working on the transformer (based on the burn marks).
As the company required drug testing in the event of injury or suspicion of use,
the company's drug compliance coordinator contacted a Medical Review Officer (MRO).
A sample collector visited the hospital to obtain a 5-panel urine drug screen. A
subpoena was required as the lineman was still in a coma, and this could only be
done through a blood draw and unconscious catheter collection. The samples purportedly
tested positive for marijuana metabolites. Subsequently, the officer mailed the
lineman a form letter in which an item was circled in red pen which said: "You
may have forfeited your rights to receive medical and indemnity benefits due to
either your refusal to be tested or the results of your recent drug test."
After awakening in the hospital and being interviewed, the lineman admitted to using
marijuana recreationally several days prior to the incident as well as having had
marijuana "either in the truck or on his person" at the time of the accident. This
was corroborated by evidence found at the scene by the attending police officer.
This consisted of a lunchbox containing a glass smoking pipe with residue and other
paraphernalia as well as a plastic bag containing a green leafy substance (later
testing positive as marijuana).
However, the lineman vehemently denied that he had been smoking marijuana before
or at the time of the accident or that he was intoxicated while on the job. He also
denied being informed about the possibility that he might lose his medical and indemnity
benefits.
Toxicological Assessment
Upon learning that the report filed with the state by his employer had resulted
in denial of Workmen's Compensation benefits, the lineman filed a grievance. His
counsel retained Dr. Sawyer to perform an objective toxicological assessment.
Dr. Sawyer conducted an extensive review of all available records including witness
statements, the raw laboratory data package and records of the attending EMS, police
and emergency room personnel. He noted numerous, significant discrepancies in the
laboratory data and the manner in which the hospital samples were collected. He
also noted erroneous conclusions with respect to the manner in which the test results
had been interpreted by the company.
For example, although the lineman's urine sample tested positive for marijuana metabolites,
the sample was collected in a catheter bag not approved for this purpose which violated
the generally-accepted sample collection criteria. The company reported that a blood
sample had been "gathered" from the laboratory, but it had no proper chain-of-custody
procedures, no date, time or custody seal. Additionally, the company personnel who
reported to the state were not qualified to offer toxicological opinions.
Of particular significance was the fact that both the urine and blood samples were
unreliable because they both tested negative for opiates. This was an important
finding as both the EMS and hospital had administered heavy amounts of opiates (morphine,
hydromorphone, etc.) prior to collection. Additionally, although the test results
of the urine screen were positive for marijuana metabolite, the blood failed to
indicate the presence of delta-9-tetrahydrocannabinol ("THC"), the active ingredient
in marijuana responsible for its intoxicating effects.
Workmen's Compensation Hearing
Dr. Sawyer had produced a written assessment, but was asked to deliver his testimony
in person at the hearing. In addition to his assessment conclusions, Dr. Sawyer
testified that the blood and urine results were inconsistent with the opiates administered
by the EMS and hospital. He also noted that the blood and urine samples suffered
from chain-of-custody and sample collection deficiencies. Of particular note was
the revelation that the confirmation test data was initially negative and the mass
spectrometer data appeared to have been "doctored" to pass.
With respect to the lineman, Dr. Sawyer pointed out that the samples did not reveal
an elevated carboxyhemoglobin level consistent with smoking marijuana prior to or
at the time of the accident. However, the results did support the contention that
the lineman had smoked marijuana several days before. This was also consistent with
his testimony and his statements in the hospital.
Company counsel previously attempted to exclude Dr. Sawyer's testimony based on
technical factors, but the Administrative Law Judge ruled that the scientific basis
of Dr. Sawyer's opinions was properly cited and that counsel's arguments were "unpersuasive."
Based on the available information and the weight of objective evidence, Dr. Sawyer
testified that it was his opinion to within a reasonable degree of toxicological
certainty that the lineman was not under the influence of drugs at the time of the
accident.
Outcome
The judge cited Dr. Sawyer's toxicological assessment as presenting plausible evidence
with respect to the actual quantitative amount and chemical nature of the marijuana
metabolite found in the test results as well as offering persuasive evidence with
respect to the lineman's lack of drug influence. He further ruled that the employer
failed to establish the necessary proof to assert a presumption of intoxication
at the time of the accident.
The judge ruled that the lineman's injury occurred within the proper scope of employment
and that he was entitled to receive Workmen's Compensation benefits. However, the
judge reduced the monetary award by 25% for the lineman's failure to wear the protective
gloves that might have avoided the accident altogether.
(Disclaimer: Toxicology case studies are impartial and objective summaries of toxicological
matters in which TCAS was retained for the purpose of assessing health-based
factors which, in some cases, led to a determination of causation. No names or identifying
information have been provided due to privacy and legal considerations. In the above
matter, Dr. Sawyer was retained by plaintiff.)
Images
- Wikimedia Commons (public domain)
- Paper Weaving (public domain)
- Wikimedia Commons (public domain)