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Bryan Fisher Interviewed by Workcompcentral.com

Positive THC Test Not a Bar to Death Benefits

by Sherri Okamoto (legal editor)

A Louisiana appellate court has ruled that a worker’s presumed intoxication from his ingestion of marijuana didn’t bar his family from seeking benefits for his fatal accident, as a matter of law.

No one saw exactly what happened to Joseph Leon Boudreaux, because he had been working alone at the Georgia Pacific plant in Port Hudson, Louisiana, before his colleagues found him unresponsive on the ground near his lift truck.

An autopsy indicated the 53-year old father of two had died from crush injuries to his head and chest. The East Baton Rouge Parish Coroner’s Office posited that the injuries had most likely been caused by pinch points that were created near the rear of the trailer that Boudreaux was loading.

However, lab work performed by the coroner’s office also revealed traces of THC in Boudreaux’s blood and urine. Georgia Pacific argued that Bourdreaux’s family therefore could not collect death benefits pursuant to Louisiana Revised Statutes Section 23:1081.

Section 23:1081 provides that benefits will not be payable for injuries caused by an injured employee’s intoxication at the time of the injury, and a positive post-accident drug test gives rise to a rebuttable presumption that the worker was intoxicated.

The family attempted to rebut the presumption of intoxication by introducing testimony from Boudreaux’s coworkers that Boudreaux did not appear to be impaired on the night of the accident.

The family also submitted a report, not in the form of an affidavit, from their expert witness, Dr. Robert K. Lantz, a forensic toxicologist.

Lantz opined that the test results – which showed THC levels of 1.3 nanograms per milliliter in Boudreaux’s blood and 68 nanograms per milliliter in his urine – suggested minimal marijuana use several days before Boudreaux’s death. As such, Boudreaux would not have been impaired by his use of marijuana at the time of his death, Lantz said.

Workers’ Compensation Judge Jason Ourso did not allow Lantz’s opinion into evidence though, since the Boudreaux family did not introduce Lantz’s affidavit until the day of the hearing on Georgia Pacific’s summary judgment motion. Ourso granted summary judgment in favor of Georgia Pacific, finding it had met its burden of proving that Boudreaux was intoxicated at the time of his accident, and that Boudreaux’s work accident therefore was presumptively caused by his intoxication.

Last Friday, a panel from Louisiana’s 1st Circuit Court of Appeals reversed the judge’s ruling.

The court noted that Georgia Pacific’s work logs and the testimony of Boudreaux’s coworkers all showed Boudreaux had worked consistently throughout the night up until the time of the accident.

Boudreaux’s coworkers all testified that he seemed alert and unimpaired on the night of the accident. They said they had never seen Boudreaux report to work under the influence of drugs, and they were unanimous in saying there was nothing unusual about Boudreaux’s behavior prior to his death.

Several of the coworkers who performed similar jobs, as well as Boudreaux’s supervisor, further indicated that Boudreaux’s loading work was difficult in that it required concentration and alertness to surroundings. Testimony from coworkers also indicated Boudreaux’s death was the product of a “freak accident” that could have happened to anyone who drove the lift trucks, impaired or not, due to the pinch points created by the difference in the levels of the loading dock and trailers.

“Whether the coworkers’ statements are to be believed requires a credibility determination, which is inappropriate for summary judgment,” the court said.

Judge William Crain wrote separately, saying he agreed the summary judgment was inappropriate, but that he did not think the testimony from Boudreaux’s coworkers was sufficient to rebut the presumption of intoxication.

Crain said he thought the trial judge had erred in excluding Lantz’s opinion from evidence, and that Lantz’s opinion was what gave rise to a triable issue as to whether Boudreaux’s presumed intoxication was a contributing cause of the fatal accident.

Bryan D. Fisher and Chris J. Day of Fisher Injury Lawyers represented Boudreaux’s family.

Fisher said Tuesday that he saw the case as an illustration of how the law sometimes struggles to adapt to changing cultural norms and the growing movement toward the legalization of marijuana.

It is legal to purchase marijuana in Alaska, Colorado, Oregon, Washington and the District of Columbia. Voters in Nevada will also get a chance to decide whether to legalize marijuana next year.

Twenty-four states have legalized marijuana for medicinal uses and an additional 15 states allow patients with certain medical conditions to have access to low-strength marijuana tinctures.

Louisiana became the first state in the Deep South to permit access to medical marijuana earlier this year.

Fisher said he did not know whether Boudreaux had ingested marijuana for recreational or medicinal purposes, but it doesn’t make a difference under Section 23:1081.

“What you have in Louisiana right now, is a broad presumption if you get injured or killed while in the course and scope of employment and your blood test results find any level of intoxicant, you are presumed to have been injured because of the intoxication,” which means “you get no workers’ compensation benefits,” Fisher explained.

The death benefits available to Boudreaux’s family were “only $75,000, and that in and of itself is a shame,” Fisher said. But to deny the family from getting this “very paltry benefit” because of trace levels of THC in Boudreaux’s body is “just plain wrong, as a matter of fairness and equity,” Fisher contended.

“The lesson here is that the workers’ compensation law needs to be modified,” he said.

Fisher suggested that lawmakers should set a limit on the level of THC that has to be detected for a worker to be presumptively impaired, similar to what every state has for alcohol.

Washington, Colorado, Nevada and Ohio already haves laws on the books setting legal impairment levels for THC. In Colorado and Washington, it’s 5 nanograms per milliliter of blood, and in Ohio and Nevada, it’s 2 nanograms per milliliter of blood.

But Paul Armentano, the deputy director of the National Organization for the Reform of Marijuana Laws, says these limits are “completely arbitrary.”

He said the consensus among experts across the country is that the presence of THC in a toxicological sample is not evidence of recent ingestion or drug-induced impairment.

THC remains in the body for extended periods of time, long after any impairment has dissipated, Armentano said. Indeed, the National Center for Biotechnology Information reports that some users may test positive for THC up to a month after last use.

Kris Krane, a managing partner at 4Front Advisors and a member of the board of directors for the National Cannabis Industry Association, said he thought having a presumption of intoxication just because THC is detectable in a person’s body is “ridiculous.”

Drug tests “are not at all a gauge of impairment,” Krane said. He said the levels of THC in Boudreaux’s blood were so low that they could really be treated as evidence that he wasn’t impaired.

From what he’s seen, Krane said, state laws such as Section 23:1081 are “just a way to discriminate against cannabis consumers” and as “a give-away to employers and insurance companies” that allows them to “get out of paying benefits” to legitimately injured workers.

But Louisiana defense attorney Roger Javier of the Javier Law Firm on Tuesday said it’s important to remember that Section 23:1081 is not an absolute bar to claims for workers who aren’t working while impaired – it’s just a presumption.

Whether the statute ought to be changed “obviously is a legislative matter,” Javier said, but as it exists, all a worker has to do to survive a motion for summary judgment is come forward with some evidence to rebut the presumption of intoxication.

Obviously, this is feasible, as the court found Boudreaux’s family managed to do it, Javier said.

“Whether or not they win the day at trial is another story,” he reflected, and Javier said he thought the family was going to have to put on a stronger evidentiary showing than just coworker testimony to prevail on the merits of their claim.

John J. Rabalais, Janice B. Unland, Gabriel Thompson and Thomas B. Delsa of Rabalais Unland represented Georgia Pacific before the Court of Appeals. They could not be reached on Tuesday for comment.