Our guest is law student Simon X. Cao, winner of this year’s College of Workers’ Compensation Lawyer’s John F. Burton Jr. Student Writing Award. His essay, “Fighting The Tide – Overcoming The Rebuttable Presumption of Intoxication In The Age of Marijuana,” examines a common Workers’ Comp defense arguing an injured worker was somehow culpable in his own injury by virtue of intoxication.
Cao examines to what extent – if any – evidence of prior marijuana consumption can be used against injured workers, as a growing number of states legalize marijuana both for recreation and medical use.
The nexus of marijuana and injury compensation is a sticky issue. Evidence of marijuana can be detected in an injured worker’s system for weeks after use, unlike alcohol, but it can be present without indicating intoxication. How reliable is testing? How consistent are the rules across states? And what about presumed consent for a drug test after a workplace accident? All interesting topics that could affect your clients.
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Intro: Before we begin today’s episode, we would like to thank our sponsors Posh Virtual Receptionists and MerusCase.
Workers Comp Matters, the podcast, dedicated to the laws, the landmark cases, and the people that make up the diverse world of workers’ compensation. Here are your hosts, Jud and Alan Pierce.
Alan Pierce: Welcome to another edition of Workers Comp Matters here on the Legal Talk Network. I am your host Alan Pierce and I am joined today by my co-host Judson Pierce. We’re both with the Law Firm of Pierce, Pierce & Napolitano in Salem, Massachusetts. Today’s topic, I think you’ll find it quite interesting. The College of Workers’ Compensation Lawyers is an organization that was established in 2007 to recognize contributors to the workers’ compensation system. Several years ago, the college instituted a student writing competition. This year in 2022, perhaps in recognition of his contributions to the development of workers’ compensation law, 50 years ago, when the National Commission on state workmen’s compensation laws issued its landmark report, Professor, John F Burton, Jr. had the honor bestowed upon him to have the student writing competition award named in his honor. So it is now the Professor John F. Burton, Jr. Student Writing Competition. So I am happy to introduce our guest, the winner of the first Burton Award for student writing, Simon Cao.
Judson Pierce: By way of background, Simon is currently in his last few months of law school at the Pennsylvania State University Penn State Law. He is on the journal, the Arbitration Law Review as the Executive External Communications Editor. He’s written a few things, one of which we will be discussing today. Before attending Penn State Law, Simon worked as a staff representative for a teacher’s union in Albuquerque, New Mexico for over five and a half years. I think you wrote that it was 30th largest in the in the country. There, he represented teachers, handling grievances and administrative hearings and arbitration proceedings. All told he was able to win over $1.2 million in back pay for educators through either settlement agreements or hearing awards.
His advocacy and his passion for working people is apparent and it began at an early age growing up in a union household. I guess our paths are similar in that, all around the kitchen table, listening to my father, talk about his cases and representing injured workers, led me to try to follow in his footsteps, and I can understand the passion. So he is also a two-time recipient of the Peggy Browning Fund fellowships where he’s worked with the AFSCME American Federation of State County and Municipal Employees and the American Federation of Teachers. As I said, he has been an Executive Communications Editor for the Arbitration Law Review at Penn State. Thank you very much for being here, Simon.
Simon X. Cao: Thank you for having me. I’m honored to be on the podcast with both of you.
Alan Pierce: Simon, for our audience, let me just announced the title of your paper, “Fighting The Tide – Overcoming the Rebuttable Presumption of Intoxication in The Age of Marijuana.” Those of you, who listen to this podcast, know that we have done a podcast or two in the past on the intoxication defense, as it is used in workers’ comp to allow insurers to be able to avoid payment when there is evidence that the injured employee somehow was culpable in his own or her own injury by virtue of being intoxicated, and the various implications of that defense legally and otherwise.
We also have done a show on marijuana and workers’ comp primarily from the standpoint is if marijuana is prescribed as an analgesic or something to help the treatment of a work-related injury should those costs be paid for by the comp carrier other compelling public policy reasons, given the uncertain nature of marijuana federally as being a legal product. You have sort of blended those two in terms of if there is marijuana or THC detected in a victim of a work injury to what extent, if any, is the existing state of law regarding intoxication applicable to THC versus alcohol or other types of drugs. So give us an overview as to the general theme or themes of your paper.
Simon X. Cao: First and foremost, there’s two overarching sort of things happening in the United States. One is the ubiquity of legalization efforts throughout the country to either legalize medicinal or recreational use of marijuana.
Also, of course, 49 states having required workers’ compensation statutes. So the overarching theme in the paper that I wrote has to do with the two competing policy issues. One is to have a swift remedy for injured workers while also providing for the medicinal use or recreational use of marijuana. As it stands right now, there are about 36 states that have legalized in some form, either medicinally or recreationally, marijuana. In those states, there are approximately at least seven states that have what’s called the Rebuttable Presumption of Intoxication. Once an injured worker test positive or has THC in their system, the rebuttable presumption essentially bars, or I argue that it essentially bars, many workers from being able to recover from their workplace injury.
Judson Pierce: One of the reasons why the preclusion exists is because it’s detectable in your system, but unlike alcohol, it can stay in your system for much, much longer, but yet not have any deleterious effects on your ability to perform your work or even cause an injury. So how is this preclusion or this rebuttable presumption or preclusion from someone receiving compensation?
Simon X. Cao: Yeah, so that’s a great point, and that’s exactly, that is precisely the argument that I make, in that there might be a more reliable sort of indicia for alcohol perhaps. If test positive or has alcohol presence in their system, just because of the timing and whether alcohol has metabolized within a person’s system after they test positive for alcohol and shortly thereafter their injury. THC, as you mentioned, it can stay in someone’s system for like a month, depending on a whole number of biological factors with the injured worker. The rebuttable presumption within some of the states in the statutes sometimes have clear and convincing evidence to overcome that rebuttable presumption and they sometimes have a preponderance of the evidence.
In many cases, there are instances where the preponderance of the evidence is a little bit higher than just a preponderance. At least when some of these claims have been adjudicated, they really require, to me, from someone reading some of the adjudications, they tend to require more than just nullifying the evidence that the person was actually intoxicated. I think one other point that you sort of mentioned is the intoxicating effect is important there, because what Alan mentioned just a moment ago about having the deleterious effects or the intoxicating effects of the chemical in someone’s system, it sort of their own — I mean, there’s some fault that’s at play in that situation. But in the situation where it’s no longer intoxicating the worker, it’s hard to say that the person is at fault for something they did long in the past.
Alan Pierce: One of the beauties of your paper is you have it extensively footnoted and referenced to a wide variety of other articles, studies, law reviews, statutory references, and case law. To that point, I’m looking on your article, you actually state that alcohol detection using current technology, which by the way is also, breathalyzer is also a hot topic in terms of reliability, but it’s pretty much that until sobriety tests as well as blood tests are the standards. You say, current technology for alcohol may provide more reliable evidence of recent alcohol use and impairment, and you say there is currently no reliable analog for detecting marijuana impairment. You actually cite that to an article on drug testing for medical marijuana uses in the workplace.
So the data that seems to be out there, correct me if I’m wrong, is that there are intoxicating properties in THC, but without a way to measure that in a meaningful fashion quickly to a great variety of iniquities, both in terms of our operations of motor vehicle as well as workplace injuries. So give us some examples of how that took place.
Simon X. Cao: Yeah. I think that’s a great point. I really tried to include some of the science, some of the peer-reviewed articles that have arisen over the years in medicine and toxicology and whatnot to make sure that I wasn’t just asserting things that I admittedly know not enough about. But I think some of the authors of these works have — again, peer-reviewed articles that demonstrate that the intoxicating effects of Delta-9-Tetrahydrocannabinol or THC better-known can have an intoxicating effect.
I think the important thing there is “can” and I don’t really — and like you mentioned, with breathalyzers and field sobriety tests and whatnot to test intoxication of workers, I mean to me, whatever flaws that may exist in those tests, in those scientific tests, to detect the presence of chemicals in a person’s body, in THC it’s even less reliable than that. So I don’t want to overstate the dearth of evidence that supports being able to detect a person’s intoxication once they get a blood test or a urinalysis test. The more common test that’s performed is urinalysis, once the worker is at the hospital or forced to provide a urine sample after their accident.
Alan Pierce: You spend some time in your paper as an example, and I think you caught the Florida’s workers’ comp statute. So what I probably would like to do is have you give us a brief overview of what the Florida statute provides. When we come back from the break, Jud will explore with you the case you cited in Florida in terms of inaction in an actual case how that plays out. So just give us a quick overview of Florida statute, which probably isn’t terribly different than many other states.
Simon X. Cao: Yeah. So, in Florida, they have a rebuttable presumption of intoxication. They also have legalized at least medicinal marijuana. I think that there were some issues with their recreational marijuana passage more recently. That’s sort of I think last I checked sort of making its way through the courts. But at the very least, they have medicinal marijuana that’s been legalized. There, the rebuttable presumption can be overcome. So after a person — so, number one, if an employer has a drug-free workplace system, a state-sanctioned drug-free workplace system, can establish the rebuttable presumption of intoxication after the injured employee provides urinalysis sample.
Now if they adhere to a chain of custody regime that’s prescribed by statute, then it’s a clear and convincing standard that’s used that the injured worker would have to overcome in order to gain access to compensation benefits.
Alan Pierce: By the way, that’s a very high standard. Any lawyers will know that clear and convincing is probably the highest civil standard to overcome a presumption.
Simon X. Cao: Absolutely. So I mean and that sort of goes to what I sort of argue in the paper about, almost an irrebuttable presumption. In fact, one of the dissenting judges in Florida mentioned that in their dissenting opinion. Nevertheless, if they don’t adhere to the chain of custody provisions, then they have the preponderance of the evidence standard, so a little bit less so than the clear and — or not a little bit, but it’s supposed to be at least less rigorous than the clear and convincing standard. But nevertheless, when it comes to adjudications, such as the case in Florida, it can be even higher still.
Alan Pierce: All right, we’re going to take a short break and then we’ll be back to continue our discussion. Be right back.
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And we’re back with our special guest Simon Cao. Before the break, Alan was talking a little bit with you about the rebuttable presumption. You cite cases in I think three states in your paper, Florida, Arkansas, and New Mexico. I’d like to take up Florida with you first. The first case you cited was the Brinson v. Hospital Housekeeping Services. Could you tell us a little bit about the outcome of that case and what it shows in terms of the injured workers’ ability or inability to prove their case?
Simon X. Cao: Yeah. In Brinson, a healthcare worker was walking outside and they fell and were injured. I think they dislocated their shoulder. After dislocating their shoulder, they were quickly rushed to a hospital and they ended up having to provide a urinalysis test. Subsequently, the employer used the affirmative defense of intoxication, because their urinalysis test revealed that they had THC in their system. Nevertheless, the supervisor and other witnesses, at least to the demeanor of the injured employee’s shoulder, didn’t give any evidence of intoxication after their injury or otherwise. Other than some of the nurses reports that she was a little grumpy, as I think some of the words that were used in the opinion, they were able to establish a complete bar to Brinson receiving workers’ compensation benefits.
Ultimately, what happened to overcome the rebuttable presumption of intoxication, Brinson had two experts, toxicology experts, provide expert testimony that it was very unlikely that she was intoxicated at the time of the accident. The unfortunate part of this is that this merely severing the relationship between the intoxicating effects of THC and the injury was not enough to overcome the rebuttable presumption. In this particular case, the workplace did have a drug-free workplace program as the Florida statute provides. However, they didn’t abide by the chain of custody provisions. So the standard in this case was preponderance of the evidence, but still the mere severance of evidence between the intoxicating effect, or the potential intoxicating effects of the THC and the injury, just weren’t enough. So on appeal Brinson was unable to recoup their workers’ compensation benefits.
Judson Pierce: A couple questions come to mind. First, I don’t know, it’s a medical one. Why would an injured worker who goes to the hospital automatically have to go through urinalysis test? If he or she’s coming in with a bad shoulder that got injured at work, I query why they would do that. Secondly, wouldn’t it be just enough for statutes and legislatures to say to the insurer, you have an ability to deny a claim, you don’t need a rebuttable presumption, which is impossible to overcome? Those two questions really sprung to mind when you were describing that that case. Then to follow through, you go into another case in Florida called Allen v. Employbridge Holding Company, which is also akin to tipping the balance towards the insurer and towards the employer. Can you go over that case with us as well?
Simon X. Cao: Yeah. So I think to answer the first question, why should they automatically just require a urinalysis test. I think it’s a totally valid question, considering the length of time in the medical, in the biology essentially in workers and the length that chemicals can stay in someone’s system. Part of it is just luck of the draw, I mean, in some situations, because some people might be able to metabolize THC or alcohol or any number of substances more quickly than others. Nevertheless, many states have essentially ratified that saying that the employee essentially is presumed to give consent to those tests.
So I think in Arkansas, for instance, which was the Allen case, I think, they I think in the statute it’s presumed that they give consent to provide a drug test essentially. The troubling thing in Allen is there was a temp worker who was working in heavy machinery, they were lifting conveyor belt parts and with a hoist, essentially. They were supposed to hoist it using a control with one hand and balance it with another hand. This particular worker had trouble balancing one conveyor belt piece, and the way that I sort of imagine it is rather lengthy unwieldy sort of peace that’s sort of floating in the air, and a temp worker provided by a temp agency. So this person probably didn’t have a whole lot of time on the job or whatnot.
Nevertheless, when they were balancing the extremely heavy conveyor belt part, they ended up trying to balance a little bit better with their body as opposed to just their hand, and the piece fell on their hand. It was so heavy in fact that they had to get a forklift to lift it up off of his hand after it fell and crushed his hand. Ultimately, a couple of his colleagues witnessed his demeanor.
They didn’t view the accident specifically, but they witnesses his demeanor as he was entering and as he was leaving, and no one suspected that he was under the influence or intoxicated at the time of the accident. But based on reports from an HR representative and another person, who said that he had bloodshot eyes, the Arkansas Workers’ Compensation Board ended up or Commission ended up denying the benefits.
The troubling thing in all of this as well is that the ALJ below, the fact-finder, found that his witnesses were more credible, essentially, but the Commission itself ruled against him and that was ultimately upheld. So it had a lot of troubling facts. Still the one sort of fact I think that sort of went against him in most of this was that he asked not to have blood drawn when he was getting treatment for his crushed hand. So that was I guess a little bit dubious. There might be some credibility issues with him in that instance, but I think the more important thing in this case was his demeanor or his outward manifestation of potential intoxication and his peers just didn’t notice anything different about him other than someone who said, he had bloodshot eyes. So what ended up happening was this person ended up getting their benefits denied, which was to me, troubling.
Alan Pierce: What was troubling is, and I think this goes to the entire focus of your paper here, is that, first of all, when he went to the hospital, he was given painkillers, which were opioids and morphine, but the drug test was positive for marijuana. From that point forward, how much marijuana, was it an amount that would be normally one that would be altering someone’s cognitive abilities for impairment, and what are the standards, and how do you detect that. Then, of course, the other question is, I’m no medical expert, but I’m not sure bloodshot eyes are an indicia of marijuana use. They may be, I don’t know, but certainly that’s an issue on alcohol and perhaps some other type of use. So yeah, I think the fact here is marijuana, whether it’s legal or not, is still classified as a Class A drug by the federal government.
The statutes that have the presumptions for intoxication, talk about intoxication, and they were all largely written before legalization of marijuana and probably didn’t contemplate. So I know you close your paper with what you might recommend or suggest in terms of amending intoxication laws to take into account these variances between alcohol intoxication and perhaps THC.
Simon X. Cao: So there’s a lot of uneven sort of treatment for marijuana, right. One of the case that I also described was in the state of Arkansas as well, where a person tested positive for opiates. Yet, the ultimate disposition in that case ended up being that the injured employee didn’t even have to go to the rebuttable presumption. That was because — part of it was because of a timing issue of when the urinalysis test came into play. But I think overall there’s a real mismatch in the legalization or the treatment of one medicine to another. The state is recognized that it’s a medicine, which Arkansas has and opiates are medicine as well, then such that they should be on equal footing. I think that gets to the ultimate facts in some of New Mexico’s treatment of medical marijuana.
I think they were the first state and the in the country to permit the medical marijuana as a medicine, basically, for injured workers. I think when it comes to the addictive properties of opiates and the opiate epidemic, essentially, that’s going on in this country, there are a whole lot of benefits, both popularly through polls conducted throughout the country through the populace essentially and also just the chemical properties of THC itself. It can be used as a pain reliever that has far less addictive and far less physical consequences to injured workers. I mentioned one person over in Florida who asked to have a pain pump surgically implanted, because they had addiction problems with opiates. It became a real scourge on this person’s life and they ended up having to see 15 different doctors. There was a lengthy review of the request for their necessary healthcare as a result of their injury. I think there’s a lot of evidence, or maybe evidence isn’t the right term, but there’s a whole lot of argument I think that could be used to use medical marijuana in lieu of addictive opiates.
Alan Pierce: So Simon if you could wave your magic wand and re-draft or craft a statute that dealt with presumptions, what would it look like?
Simon X. Cao: If I could wave my magic wand, I would say just don’t have them. There’s already something there for an employer to use and I think Jud mentioned that earlier. I mean it just already exists. So you can use marijuana or a positive THC test as a factor that somebody, hey, this was present in this person system. But intoxication, I think, implies that the person was actually intoxicated. I really, I don’t know that I think it’s more than implies, but the person was actually intoxicated. That just isn’t part of the biology or the toxicology that goes along with THC in person’s system.
Alan Pierce: Marrying intoxication to impairment, not all of intoxicated people are impaired and not all impaired people are intoxicated, so that confuses. Simon, if somebody wants a copy of the paper, certainly they can get it by reaching out to Jud or me at Legal Talk Network at our email addresses, [email protected] or [email protected]. Simon, if they wanted to contact you directly, how would they do that?
Simon X. Cao: They can email me at [email protected] and I can send my paper or answer any questions that they might have.
Judson Pierce: Thank you very, very much for joining us today, and we look forward to reading more of your articles in the future and congratulations in the next few months when you get your degree.
Alan Pierce: And that’s the bar. Good luck.
Simon X. Cao: That’s right. Thank you so much. I appreciate. It’s been an honor.
Alan Pierce: Open the Barbary books.
Simon X. Cao: For sure, will do.
Judson Pierce: All right, for all of us here at Workers Comp Matters, thank you for joining us. We will talk again, and remember, make it a day that matters.
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