Home > Uncategorized > When “Presumptively Positive” is No Presumption at All

When “Presumptively Positive” is No Presumption at All

Would you have any concerns at all if your driver, pilot, or surgeon had tested “presumptive positive” for amphetamine in his or her blood just after commencing services?  “Ladies and gentlemen, we will be cruising at X thousand feet, although there is a storm in the landing area, I feel surprisingly confident because of the presumptive positive amount of amphetamine in my blood.”  Not a particularly encouraging thought.

Applicant Bart J. Johnson was injured while working for Beyette’s Tree Care (uninsured), rendering him a paraplegic.  While in the emergency room, a blood test came back presumptively positive for the presence of amphetamine.  Defendant asserted the intoxication defense of Labor Code section 3600(a)(4), but to no avail.

The Workers’ Compensation Judge concluded that the single report did not prove that applicant was intoxicated at the time of his injury, let alone that intoxication was a substantial cause in his injury.  The Workers’ Compensation Appeals Board and the Court of Appeals concurred.

If you would like to read the Order Denying Reconsideration or the Report and Recommendation of the WCJ, the Lexis citation is 2011 Cal. Wrk. Comp. P.D. Lexis 378, or please e-mail me for a copy: gregory@grinberglawoffice.com.

How is a defendant to prove its case in a situation such as this.  The amphetamine screen came back presumptively positive.  Although this is not a conclusive test, it should at least shift the burden to applicant to show that he was not under the influence of any illegal substance – after all, “presumptively positive” means more likely than not, also known as a preponderance of the evidence.

Although the defense could have provided a foreman witness to testify as to applicant’s behavior on that fateful day, what would the foreman testify to?  Your typical man-on-the-street, foreman, and (without a doubt) most charismatic and eloquent blogger all have experience with alcohol and its visible effects.  Is every employer and supervisor to be charged with expert knowledge in the effects of amphetamine use and its symptoms?

Even if the defense could have satisfied the intoxication defense requirement of showing intoxication, causation would have been another issue.  Could the defendant effectively prove that the injury was sustained as a result of the intoxication?  According to the WCJ, the answer is “no.”

In any case, your captain would like to use his first drink to toast to the safety of our flight.  Cheers!

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