April 8, 2019

A Kentucky Court of Appeals has affirmed a decision made by the Kentucky Workers' Compensation Board that a positive cocaine test of an injured employee did not bar his workers' compensation claim because the employer failed to demonstrate the employee had proximately caused his own injury by voluntarily becoming intoxicated. The case is R&T Acoustics v. Aguirre, No. 2018-CA-001277-WC, 2019 Ky. App. LEXIS 39 (Ct. App. Mar. 29, 2019).

Bernabe Aguirre was injured while working at a construction site when he fell from a ladder. He went to an urgent care center and was treated for ankle and foot fractures. During treatment, Aguirre had to submit a urine sample for a drug screen, resulting in a positive test for cocaine in his system. He subsequently filed a claim for workers' compensation benefits, and R&T Acoustics (RTA) eventually was determined to be the employer responsible for his claim. RTA raised the affirmative defense of voluntary intoxication, according to KRS 342.610(3) which stated “liability for compensation shall not apply where injury . . . to the employee was proximately caused primarily by voluntary intoxication. . . .” RTA supported the voluntary intoxication defense by submitting a report from an orthopedic surgeon who stated that from a medical standpoint, the presence of cocaine in the body could undermine the ability to perform work duties safely. The presence of the cocaine in the quantities that had been documented in the case at hand could have been a significant contributing factor in the injury, perhaps causing the injury to be worse than if he had not been impaired. RTA also submitted a report from a clinical chemist and forensic toxicologist who reviewed Aguirre's medical records, deposition testimony, and information relating to the effects of cocaine. He reasoned that there was no information on the time Aguirre ingested the cocaine and that it was unknown whether he frequently used cocaine or if he used it occasionally, and since there is no blood test for cocaine he cannot establish whether the positive urinalysis was due to recent cocaine use or distant cocaine use. If RTA had information on the frequency of use and the time of use, they would be able to establish with more certainty that the cocaine use was the proximate cause of the fall. Without that information, though, they could only conclude that he had ingested cocaine at some point during the 24 hours prior to testing. The administrative law judge dismissed the workers' compensation claim, determining that voluntary intoxication caused the injury.