Under the Pennsylvania Workers’ Compensation Act, Act 44 excludes from coverage injuries that would not have occurred but for the intoxication of the employee. Mahon v. WCAB (Expert Window Cleaning), 835 A.2d 420 (Pa.Cmwlth. 2003). The burden of proof is on the employer and is two-pronged. First, the employer must establish that the employee was intoxicated either from drugs or alcohol. Second, the employer must establish that the use either caused the injury or was a major and very substantial contributing fact to the injury.
On May 12, 2016, Occupational Safety and Health Administration (OSHA) issued its final rule requiring certain employer to submit injury and illness data. This new rule prohibits employers from retaliating against employees for reporting workplace injuries and illnesses. OSHA has determined that retaliation can be anything that would deter a reasonable employee from reporting a work-related injury or illness. Based upon the rule’s comments, employer’s should limit post-incident drug testing to situations where: (1) employee drug (or alcohol) use is likely to have contributed to the incident, and (2) the drug (or alcohol) test can accurately identify whether the employee was impaired at the time by drug use.
It will impact the ability to put forth an affirmative defense for the Pennsylvania employer to pick and choose which injured employees undergo post-accident testing, if it is later determined that the employee was intoxicated at the time of injury. The employer would be required to have training in order to accurately assess the potential intoxication of someone. It may also raise an issue of discrimination if only certain injured employees would be required to undergo testing.
In Clear Channel Broadcasting v. WCAB (Perry), 938 A.2d 1150 (Pa. Cmmw. 2007), an employee died as a result of a motor vehicle accident. Although there was no question that the employee consumed one beer according to his coworker, he did not appear to be impaired or intoxicated. A toxicological report showed 0.17 grams of ethanol per deciliter of employee’s blood and 0.22 grams of ethanol per deciliter of employee’s urine. Due, in part, to the opinions of the claimant’s medical expert that the toxicological report was unreliable and could not be relied on to determine the level of impairment at the time of the accident, the Petition was granted. However, this is the perfect example of the fallacy in relying upon an employer to render a determination of whether an employee’s drug or alcohol use is likely to have contributed to the incident. Based upon the facts of the above case, no visual evidence of impairment or intoxication by a witness, a drug or alcohol test should not have been performed under OSHA’s new rule.
Similar to the witness in Perry, the witness in Thomas Lindstrom Co., Inc. v. WCAB (Braun), 992 A.2d 961 (Pa. Commw. 2010) also testified that in the approximately a half-hour prior to the employee’s fall, the Claimant did not stagger, sway, or lose his balance and was able to secure three or four beams prior to his fall. The admitting physician noted that the claimant had alcohol on his breath, along with a problem of alcohol and substance abuse, and an alcohol and substance abuse screening was immediately requested. The whole blood alcohol level sample resulted in a 0.23 percent to 0.29 percent result. Again, based upon the facts of the above case, no visual evidence of impairment or intoxication by a witness at the scene of the accident, under OSHA’s new rule, a drug or alcohol test should not have been performed. The OSHA rule does not appear to impact the ability of a medical provider to order the test without direction from the employer.
Finally, in Braithwaite v. WCAB (D. Powell, Inc.), 2011 Pa. Commw. Unpub. LEXIS 999, the employee was involved in a single-vehicle accident while driving a company van. He explained that the accident occurred because he dropped his cell phone and then lost control of his van attempting to pick it up. He failed to inform his employer that he had been at a bar for several hours prior to the accident. It was not until it was later discovered that the police issued the employee a citation for driving under the influence that the employer became aware of the alternative cause for the accident.
The involvement in a motor vehicle accident as outlined above should not trigger post-accident testing under the new OSHA rule as the employee provided a logical explanation for the accident. As the post-accident testing was not automatically performed as a result of the work-injury, the employer was required to file litigation in order to have the claim which was accepted by way of a converted NTCP vacated.
Although the comments in the new OSHA rule imply that minor injuries should not trigger post-accident drug testing, an employee’s intoxication can just as easily cause a minor injury as it can a major injury.
Post-accident testing is recommended in Pennsylvania as long as it is consistently and reasonably applied. In most cases, the drug/alcohol screening required by the employer for all reported accidents should take place within 12-24 hours. Further, the employer should make the employees aware of the specific provider(s) that the employee must be seen by along with forms to be completed.
From an employer standpoint, it is imperative that the facility obtaining the blood or urine indicate that proper procedures are followed, that the integrity of the specimen is maintained, that an approved method of testing was utilized, and that the chain of custody is maintained. As the determination of whether a medical witness’ opinion as to the reliability of the testing and whether the results can establish that the employee was intoxicated and that the intoxication was the cause or major and substantial contributing factor to the injury is a credibility determination by the workers’ compensation judge, it is imperative that the validity of the testing not be called into question.