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OhioBWC - Basics: (Policy library) - File

Policy Name:

Intoxication, Under the Influence and Rebuttable Presumption

Policy #:

CP-09-09

Code/Rule Reference:

R.C. 4123.54

Effective Date:

09/29/17

Approved:

Kevin R. Abrams, Chief Operating Officer

Origin:

Claims Policy

Supersedes:

CP-09-09, effective 06/09/15

History:

New 06/09/15

 

 

I. POLICY PURPOSE

 

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.

 

II. APPLICABILITY

 

This policy applies to claims services staff.

 

III. DEFINITIONS

 

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 an individual of ordinary care and prudence to 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 admitted as true, but that can be contradicted by evidence to the contrary.

 

IV. POLICY

 

A.    Application of Rebuttable Presumption:

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 under the influence of marijuana is the proximate cause of an injured worker ‘s (IW) injury:

a.    When the employer has complied with R.C. 4123.54(B) as indicated in section IV.A.3 below;

b.    The IW has tested positive on a 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 the employer has complied with R. C. 4123.54(B) and rebuttable presumption applies, 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 require the following from the employer to show compliance with R.C. 4123.54(B):

a.    Positive chemical test results or written documentation of the IW’s refusal to submit to a chemical test following the injury to the IW;

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 not prescribed by a physician or marijuana.

c.     Verification that the employer had a written notice posted prior to the date of injury notifying employees that the results of, or the employee’s refusal to submit to, a chemical test may affect the employee’s eligibility for workers’ compensation 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, or under the influence of marijuana at the time of the injury;

a)    The documentation must include a description by the employer of the facts and behavior supporting the reasonable cause.

b)    See section IV.A.5 below for a description of facts and inferences that may support reasonable cause.

ii.     A police officer pursuant to R.C. 4511.191, Traffic Laws-Operation of Motor Vehicles and not at the request of the employer; or

iii.    A licensed physician who is not employed by the IW’s employer and who did not conduct the test at the request of the IW’s employer (e.g., an emergency room physician).

4.    The employer’s participation in a drug free workplace program alone is not sufficient to show compliance with R.C. 4123.54(B).

5.    Reasonable cause, documented by the employer, may include, but is not  limited to, the following facts and inferences:

a.    Observable phenomena, such as the direct observation of:

i.      Use, possession, or distribution of alcohol, a controlled substance or marijuana;

ii.     Physical symptoms of being under the influence of alcohol, a controlled substance or marijuana, such as:

a)    slurred speech;

b)    dilated pupils;

c)    odor of alcohol, a controlled substance or marijuana;

d)    changes in affect; or

e)    dynamic mood swings.

b.    A pattern of abnormal conduct;

c.     Erratic or aberrant behavior;

d.    Deteriorating work performance that appears to be related to the use of alcohol,a controlled substance  or marijuana and not attributable to other factors. Deteriorating work performance may be exhibited by:

i.      Frequent absenteeism;

ii.     Excessive tardiness; or

iii.    Recurrent accidents.

e.    The identification of the IW as the focus of a criminal investigation into unauthorized possession, use or trafficking of a controlled substance or marijuana;

f.      A report of use of alcohol, a controlled substance or marijuana provided by a reliable and credible source;

g.    Repeated or flagrant violations of the safety or work rules of the employer:

i.      That are determined by the IW’s supervisor to pose a substantial risk of physical injury or property damage; and

ii.     That appear to be related to the use of alcohol, a controlled substance or marijuana; and

iii.    That do not appear attributable to other factors.

6.    It is the policy of BWC to presume that:

a.    The chemical test was 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 were determined 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.

7.    BWC will find the IW was intoxicated/under the influence of alcohol, for purposes of this policy, when the IW is determined to have an alcohol concentration level equal to or in excess of the levels established in divisions (A)(1)(b) to (i) of section 4511.19 of the Revised Code.

 

B.    For a claim that does not meet the standards outlined above in section IV.A, it is the policy of BWC to still consider whether the injury was proximately caused by alcohol use,use of a controlled substance not prescribed by a physician, or use of marijuana.

1.    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.

2.    BWC will consider a positive chemical test, along with all the other evidence in a claim, in determining the proximate cause of an injury.

 

BWC staff may refer to the corresponding procedure for this policy entitled “Intoxication, Under the Influence and Rebuttable Presumption” for further guidance.


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