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Policy and Procedure Name:
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Intoxication, Under the Influence and Rebuttable
Presumption
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Policy #:
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CP-09-09
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Code/Rule Reference:
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R.C. 4123.54, 49 C.F.R 40.87
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Effective Date:
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04/20/21
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Approved:
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Ann M. Shannon, Chief of Claims Policy and Support
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Origin:
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Claims Policy
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Supersedes:
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Policy # CP-09-09, effective 09/29/17
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History:
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Previous versions of this policy are available upon
request
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Table of Contents
I. POLICY PURPOSE
II. APPLICABILITY
III. DEFINITIONS
IV. POLICY
A. Application of
Rebuttable Presumption
B. Failure to Meet
Standards for Rebuttable Presumption
V. PROCEDURE
A. General Claim Note and
Documentation Requirements
B. Allegation or Evidence
of Intoxication
C. Supporting Documentation
Necessary to Apply the Rebuttable Presumption
D. When Evidence Supports
Utilizing the Rebuttable Presumption
E. When Rebuttable Presumption
Should not be Applied
The purpose of this policy is to ensure BWC staff knows how
to evaluate evidence and determine a claim when the evidence includes a
positive chemical test for alcohol, a controlled substance that was not
prescribed by a physician, or marijuana.
This policy applies to claims services staff.
Burden of proof: The responsibility of a party to
prove or disprove a disputed fact.
Preponderance of the evidence: A standard of proof
which is met when a party’s evidence on a fact indicates that it is “more
likely than not” that the fact is as the party alleges it to be.
Reasonable cause: The basis for which an individual could
objectively believe and conscientiously entertain suspicion based on observable
facts; as further defined by R.C. 4123.54(C)(2): evidence that an employee is
or was using alcohol, a controlled substance or marijuana, drawn from specific,
objective facts and reasonable inferences drawn from these facts in light of
experience and training.
Rebuttable presumption: A conclusion as to the
existence or nonexistence of a fact that is drawn when certain evidence has
been introduced and believed to be true, but that can be contradicted by
evidence to the contrary.
1. It is the
policy of BWC to apply rebuttable presumption and presume that intoxication, being
under the influence of a controlled substance not prescribed by a physician, or
being under the influence of marijuana is the proximate cause of an injured
worker’s (IW) injury when the requirements of R.C. 4123.54(B) are met,
including:
a. The
employer has provided proper notice that a positive chemical test or refusal to
submit to a chemical test may impact eligibility for workers’ compensation
benefits;
b. The IW has
tested positive on a properly administered and properly requested chemical test
or has refused to be tested; and
c. The
presumption has not been rebutted with credible, persuasive evidence that meets
the preponderance of the evidence standard.
2. When claims
services staff verifies that an employer has met evidentiary requirements for and
rebuttable presumption to apply as outlined in procedures, the burden of proof
shifts to the IW to prove that the intoxication, being under the influence of a
controlled substance not prescribed by a physician, or being under the
influence of marijuana did not cause the accident.
3. It is the
policy of BWC to presume that:
a. chemical
tests submitted to a claim were conducted at a laboratory certified by the
United States Department of Health and Human Services or a laboratory that
meets or exceeds the standards of that department for laboratory certification;
and
b. Positive
test results are to be interpreted as being at a level equal to or in excess of
the cutoff concentration level for the particular substance, as provided in 49
C.F.R 40.87, or
c. A
positive test result for barbiturates, benzodiazepines, or methadone was at a
level established by the certified laboratory.
4. The
employer’s participation in a drug free workplace program alone is not
sufficient to establish the rebuttable presumption in accordance with R.C.
4123.54(B).
1. For a
claim that does not meet the evidentiary requirements of rebuttable presumption,
it is the policy of BWC to request a physician review to evaluate the evidence
to determine whether the injury was proximately caused by alcohol use, use of a
controlled substance not prescribed by a physician, or use of marijuana.
a. If BWC
determines that the alcohol use, use of a controlled substance not prescribed
by a physician, or use of marijuana was the proximate cause of the injury, BWC
will deny the claim.
b. BWC will
consider a positive chemical test, along with all the other evidence in a
claim, in determining the proximate cause of an injury.
1. BWC staff
shall refer to the Standard
Claim File Documentation and Altered Documents policy and procedure for
claim note and documentation requirements; and
2. Shall
follow any other specific instructions for claim notes and documentation
included in this procedure.
1. When a
claim is received and the employer is alleging or there is evidence that the IW
was intoxicated, under the influence of a controlled substance not prescribed
by a physician or under the influence of marijuana, claims services staff
shall:
a. Investigate
the claim to determine if the employer has met all the requirements of R.C.
4123.54 as listed in Section C. below; and
b. Investigate
if there is additional evidence that meets the preponderance of the evidence
standard rebutting the presumption that intoxication, being under the influence
of a controlled substance not prescribed by a physician or being under the
influence of marijuana caused the accident or injury.
2. Claims
services staff may consult with the BWC attorney prior to making the initial
determination on a claim involving positive chemical test results or an injured
worker’s (IW) refusal to submit to a chemical test.
3. Claims
services staff may use the “Investigation Tool for Intoxication, Under the
Influence and Rebuttable Presumption” available on COR to assist in
investigation of the claim.
4. Requests
for additional assistance investigating circumstances of claims involving this
policy may be staffed with claims services staff supervisors.
5. Claims
services staff shall review the file for the following evidence to show that
the rebuttable presumption should be applied pursuant to R.C. 4123.54:
a. Positive
chemical test results or written documentation of the IW’s refusal to submit to
a chemical test;
b. Documentation
showing that the specimen collected for the chemical test was obtained within
the appropriate time frame, which is:
i. Within
eight (8) hours of injury to determine alcohol concentration levels; or
ii. Within
thirty-two (32) hours of injury to determine levels of controlled substances or
marijuana.
c. A
written statement, affidavit or other verification that the employer had a
written notice to employees, posted prior to the date of injury, stating that
the results of, or the employee’s refusal to submit to, a chemical test may
affect the employee’s eligibility for workers’ compensation and benefits.
i. Such
notice must be the same size or larger than the proof of workers’ compensation
coverage notice furnished by BWC; and
ii. Must
be posted in the same location as the proof of workers’ compensation coverage
notice or the certificate of self-insurance.
d. Documentation
that the post-accident chemical test was conducted at the request of one of the
following:
i. The
employer, with reasonable cause to suspect that the IW was intoxicated, under
the influence of a controlled substance not prescribed by the IW’s physician or
under the influence of marijuana. The documentation must include a description
by the employer of the facts and behavior supporting the reasonable cause;
ii. A
police officer as part of a traffic violation stop and not at the request of
the employer;
iii. A licensed
physician who is not employed by the IW’s employer and is not conducting the
test at the request of the IW’s employer (e.g., an emergency room doctor).
6. If any of
the above information is not on file, claims services staff shall request the
missing evidence from the employer.
7. Claims
services staff shall document attempts to obtain the necessary documentation in
claim notes.
8. Claims
services staff shall update the claim handling profile statement in the claims
management system with the results of a positive test result and who submitted
the test results (employer or provider).
9. If the IW
refused to take the test or to release test results, claims services staff
shall document the refusal in claim notes.
1. When all
necessary evidence, as outlined in Section B of this procedure, has been
submitted, claims service staff shall apply the rebuttable presumption and
presume that intoxication, being under the influence of a controlled substance
not prescribed by a physician, or being under the influence of marijuana is the
proximate cause of an injured worker’s (IW) injury and deny the claim.
2. If the
rebuttable presumption applies, claims services staff shall:
a. Deny the
claim; and
b. Issue an
order using:
i. The
denial order insert for “Intoxication or Under the Influence” in the claims
management system; or
ii. If
the IW refused to submit to a test, select “Other Reasons” and insert “The
employer has complied with Ohio Revised Code Section 4123.54 and the injured
worker has refused to take a chemical drug test. This refusal has created a
presumption that the proximate cause of the injury was due to being
intoxicated, under the influence of a controlled substance not prescribed by a
physician or under the influence of marijuana and the injury is not
compensable.”
1. When evidence
has been submitted to show that the injury would have occurred regardless of
the intoxication, being under the influence of a controlled substance not prescribed
by a physician or under the influence of marijuana (i.e., the evidence does
rebut the presumption), claims services staff shall not apply rebuttable
presumption to deny the claim.
2. When the supporting
documentation outlined in Section B has not been submitted, claims
services staff shall not apply rebuttable presumption.
3. When the
rebuttable presumption is not applicable, claims services staff shall consider
positive test results in the same manner as any other evidence.
a. Positive
test results alone shall not be considered sufficient evidence to find the
injury was caused by intoxication, being under the influence of a controlled
substance not prescribed by a physician or being under the influence of
marijuana.
b. Claims
services staff shall consider all the evidence and circumstances of the injury
that may corroborate or discount allegations of intoxication, being under the influence
of a controlled substance or under the influence of marijuana as being the
proximate cause of the injury.
c. Claims
services staff shall request a physician file review to help determine if the
alcohol, controlled substance(s) or marijuana for which the IW tested positive
was likely to be the proximate cause of the injury. Documentation of the level
of alcohol or controlled substance must be included.
4. If the
evidence doesn’t show that the alcohol or drug use was the proximate cause of
the injury, then the positive test results shall not be used as a factor in
determining the claim. If the evidence does show that the alcohol or drug use
was the proximate cause of the injury, then the claim shall be denied.