LINGO V. EARLY COUNTY GIN, INC. GEORGIA COURT OF APPEALS SUMMARY

Written by: Rayford Taylor, Esq.

LINGO V. EARLY COUNTY GIN, INC.

GEORGIA COURT OF APPEALS

EMPLOYER WAS NOT ENTITLED TO STATUTORY PRESUMPTION CONCERNING DRUG USE

Analysis

An employer which seeks to use the statutory presumption that a workplace accident was caused by drug use must strictly comply with the statutory requirements. If not done properly, the presumption cannot be used to defend or defeat a workers’ compensation claim.

Facts

In this case, a faulty chain of custody precluded an employer’s right to presumption that a workplace accident was caused by drug use, and therefore an injured worker was not entitled to workers’ compensation benefits.

Ernest Lingo worked for Early County Gin. He directed drivers as they backed the large trucks into a loading dock area. On one occasion, he did not hear a truck backing toward him and was crushed against the dock.

Lingo was taken to the hospital for extensive emergency surgery. The employer retained a technician who went to the hospital to obtain a blood sample to test for drugs. The technician, who was not allowed in the operating room, obtained the sample from an operating room nurse. The technician had no firsthand knowledge as to who drew the sample or what protocols were observed. Testing of the sample revealed cannabinoid metabolites.

At a workers’ compensation hearing, a coworker testified he and Lingo sometime smoked marijuana at the workplace and had smoked on the day of the accident. Lingo denied that he ever smoked at work. Lingo also presented an expert who criticized the lab analysis of the blood sample. The expert’s opinion was that only a blood plasma test will accurately reveal the extent to which marijuana is currently affecting cognition.

The administrative law judge determined the chain of custody was not strong enough to entitle employer to a presumption that the accident was caused by drug use. The State Board’s appellate division reversed that decision. The Superior Court affirmed the State Board’s reversal.

The Court of Appeals reversed the Superior Court’s ruling. The Court agreed with Lingo’s chain of custody argument, finding that the employer failed to satisfy the statutory prerequisites of O.C.G.A. § 34-9-415(d)(5) governing the collection of samples for employee drug screenings. The employer failed to establish that a statutorily authorized person collected the sample which was fatal to the employer’s ability to rely upon the rebuttable presumption set forth in O.C.G.A. § 34-9-17(b)(2)