Ronnie Griffith v. CMR Construction & Maintenance Resources and LCTA Workers' Compensation

Judgment rendered April 13, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,443-WCA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

RONNIE GRIFFITH Plaintiff-Appellant

versus

CMR CONSTRUCTION & Defendants-Appellees
MAINTENANCE RESOURCES
AND LCTA WORKERS’
COMPENSATION

*****

Appealed from the
Office of Workers’ Compensation, District 1-E
Parish of Ouachita, Louisiana
Trial Court No. 19-07501

Brenza I. Jones
Workers’ Compensation Judge

*****

HUDSON, POTTS & BERNSTEIN, L.L.P. Counsel for Appellant
By: Brian P. Bowes

THE ANZELMO LAW FIRM Counsel for Appellees
By: Donald J. Anzelmo
Benjamin D. Jones

*****

Before PITMAN, STEPHENS, and THOMPSON, JJ.

STEPHENS, J.

On October 1, 2019, claimant, Ronnie Griffith, was seriously injured

when he fell through the roof of an airplane hangar at the Monroe Regional

Airport while employed as a construction foreman by defendant, CMR

Construction & Maintenance Resources, Inc. (“CMR”). As a result of his

30-foot fall to the concrete floor, Griffith sustained numerous broken bones

and internal injuries.

Griffith filed a disputed claim for compensation on November 8,

2019, against his employer and its insurer, LCTA Workers’ Compensation,

seeking the authorization of medical treatment and payment of disability

benefits, together with the imposition of penalties and an award of attorney

fees. Defendants filed an answer on December 16, 2019, denying that

Griffith was entitled to benefits because his accident was caused by his

intoxication at the time of the accident in accordance with La. R.S. 23:1081.

Defendants amended their answer to add the defense of fraud pursuant to La.

R.S. 23:1208 and seek forfeiture of all benefits as well as full restitution of

benefits previously paid, attorney fees, costs of litigation, and court costs.

That the accident occurred in the course and scope of claimant’s

employment and causation of Griffith’s injuries were not in dispute. The

issues to be decided by the workers’ compensation judge (“WCJ”) were

claimant’s entitlement to indemnity benefits; his entitlement to medical

benefits; the nature and extent of his injury; whether penalties and attorney

fees were appropriate; or, whether Griffith should be ordered to forfeit all

benefits and/or pay restitution, attorney fees, etc., pursuant to La. R.S.

23:1208. However, before addressing any of these issues, the WCJ was

tasked with determining whether the intoxication defense was applicable,

and if so, whether claimant could overcome the presumption of causation

afforded the employer by La. R.S. 23:1081.

Most of the witness testimony was by deposition, stipulation, and/or

report. The only live testimony at the Zoom videoconference trial was that

of claimant Ronnie Griffith. Following presentation of the evidence and

after taking the matter under advisement, the WCJ found that defendants

proved that Griffith was intoxicated at the time of his accident, and that this

intoxication was causally linked to the accident. The WCJ further found

that claimant failed to prove that his intoxication was not a contributing

cause of the accident. Therefore, his claim for benefits was denied. The

WCJ also specifically found that “[a]ll other requests are denied, and this

matter is dismissed with prejudice.” It is from this judgment that claimant

has appealed, and defendants have filed an answer to the appeal.

DISCUSSION

Disqualification of Claimant for Workers’ Compensation Benefits

In his first three assignments of error, claimant asserts that the WCJ

erred in relying on the following evidence to disqualify him from benefits

pursuant to La. R.S. 23:1081: his employer’s drug testing policy; the drug

test requested by his employer, CMR, which failed to conform with

Louisiana’s Drug Testing Statutes, La. R.S. 49:1001, et seq., and the

Substance Abuse Mental Health Services Administration (SAMHSA)

Guidelines; and, the expert report prepared by toxicologist William George.

Griffith further urges that this evidence was insufficient to support the

WCJ’s conclusion that CMR was entitled to the La. R.S. 23:1081

presumption of intoxication, but if the presumption was established, then the

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WCJ erred in failing to find that he introduced sufficient evidence to rebut

the presumption of intoxication.

Defendants contend that they established a prima facie case that

Griffith was intoxicated at the time of his accident—all they were required

to do under La. R.S. 23:1081(5) and (8) for CMR to be entitled to a

presumption that claimant was intoxicated and that this intoxication was a

cause of his accident was show that claimant was intoxicated due to drug use

by a preponderance of the evidence—and the record supports the trial

court’s finding that they did so. Furthermore, urge defendants, the record

supports the trial court’s determination that claimant failed to overcome this

presumption.

As noted above, that the accident occurred in the course and scope of

claimant’s employment and causation of Griffith’s injuries were not in

dispute. The first issues addressed by the WCJ in this case were whether the

intoxication defense was applicable and, if so, whether claimant could

overcome the presumption of causation provided the employer by this

defense.

Louisiana Revised Statute 23:1081 prohibits workers’ compensation

benefits for injuries caused by an injured employee’s intoxication at the time

of the injury. La. R.S. 23:1081(1)(b). The employer has the burden of

proving the intoxication. La. R.S. 23:1081(2). In order to support a finding

of intoxication to drug use, and a presumption of causation due to such

intoxication, the employer must prove the employee’s use of a controlled

dangerous substance, such as marijuana, by a preponderance of the evidence.

La. R.S. 23:1081(8); Nivens v. Fields, 46,524 (La. App. 2 Cir. 11/16/11), 79

So. 3d 1144.
3

In meeting this burden, the results of employer-administered tests

shall be considered admissible evidence when these tests are the result of the

testing for drug usage done by the employer pursuant to a written and

promulgated substance abuse rule or policy established by the employer. La.

R.S. 23:1081(8). An employer has the right to administer drug and alcohol

testing or demand that the employee submit himself to drug and alcohol

testing immediately following an alleged job accident. La. R.S.

23:1081(7)(a); Beck v. Newt Brown Contractors, LLC, 46,523 (La. App. 2

Cir. 9/21/11), 72 So. 3d 982, writ denied, 2011-2352 (La. 12/2/11), 76 So.

3d 1180. The collection, handling, and testing process must be trustworthy.

Nivens, supra. If there is, at the time of the accident, evidence of either on

or off the job use of marijuana, then it shall be presumed that the employee

was intoxicated at the time of the accident. La. R.S. 23:1081(5); Nivens,

supra; Deal v. Bancroft Bag, Inc., 28,188 (La. App. 2 Cir. 4/3/96), 671 So.

2d 1264, writ denied, 1996-1102 (La. 6/7/96), 674 So. 2d 977.

Once the employer has met the burden of proving that the employee

was intoxicated at the time of the accident, it is also presumed that the

employee’s injury was caused by his intoxication. La. R.S. 23:1081(12).

The burden then shifts to the employee to show by a preponderance of the

evidence that his intoxication was not a contributing cause of the accident.

La. R.S. 23:1081(12); Kennedy v. Camellia Garden Manor, 2002-1027 (La.

App. 3 Cir. 2/5/03), 838 So. 2d 99. If he does so, then the intoxication

defense of the employer is defeated. Joseph v. Georgia Pacific, LLC, 2015-

0227 (La. App. 1 Cir. 9/18/15), 182 So. 3d 163; The Shaw Group v. Kulick,

2004-0697 (La. App. 1 Cir. 4/8/05), 915 So. 2d 796, writ denied, 2005-1205

(La. 11/28/05), 916 So. 2d 148.
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Factual findings of a WCJ are reviewed under the manifest error or

clearly wrong standard of review. Dean v. Southmark Construction, 2003-

1051 (La. 4/8/04), 870 So. 2d 112; Smith v. Louisiana Dep’t of Corrections,

1993-1305 (La. 2/28/94), 633 So. 2d 129; Nivens, supra; Schouest v.

Acadian Construction Services, 2015-921 (La. App. 3 Cir. 6/8/16), 193 So.

3d 595. A determination by a WCJ that an employee failed to rebut the

presumption of intoxication is a factual finding that will not be overturned

absent manifest error. Romero v. La. Commerce and Trade Ass’n, 2011-

1533 (La. App. 3 Cir. 7/13/12), 96 So. 3d 699, writ denied, 2012-1852 (La.

11/9/12), 100 So. 3d 838. In applying the manifest error-clearly wrong

standard, we must determine not whether the trier of fact was right or wrong,

but whether the factfinder’s conclusions were reasonable. Stobart v. State,

DOTD, 617 So. 2d 880 (La. 1993); Schouest, supra.

Griffith first contends CMR’s drug testing policy was insufficient for

use under La. R.S. 23:1081, and the WCJ erred in relying on it to find his

employer met the presumption of intoxication thereunder. It is claimant’s

argument that whenever a drug test is performed by an employer pursuant to

its drug testing policy, that policy must be explicit and set forth the methods

regarding drug testing and specify under what circumstances the employee

may be required to submit to testing.

Defendants assert that Griffith’s argument regarding the sufficiency

(or lack thereof) of CMR’s drug policy is misplaced since the drug test was

not employer-administered, but was instead administered in an emergency

situation by medical personnel at Ochsner LSU Health Shreveport.

Furthermore, CMR urges that their drug policy meets the requirements of

La. R.S. 23:1081.
5

CMR’s Drug & Alcohol Policy is included in the record as Defense

Exhibit #1.1 While it does not set forth with specificity the types or methods

of drug testing (we note that neither La. R.S. 23:1081 nor the administrative

regulations2 promulgated in accordance with La. R.S. 23:1081(9) do), this

policy informed Griffith that, as a result of his employment with CMR, he

agreed to submit to “drug screening for the presence of drugs/alcohol under

the conditions of reasonable suspicion, for cause/post-incident, random

testing, and post-accident testing.”

All that La. R.S. 23:1081 requires, it seems, is a written and

promulgated substance abuse rule or policy that provides for testing for drug

use, and testing performed in accordance therewith. See, Austin v.

Fibrebond Corp., 25,565 (La. App. 2 Cir. 4/23/94), 638 So. 2d 1110, writ

denied, 1994-1326 (La. 9/2/94), 643 So. 2d 149; Joseph, supra; Robinzine v.

Labor Finders, 2006-389 (La. App. 5 Cir. 10/17/06), 943 So. 2d 1215, writ

denied, 2006-2732 (La. 1/12/07), 948 So. 2d 153; The Shaw Group, supra;

Kennedy, supra; Fisher v. Westbank Roofing, 1995-964 (La. App. 5 Cir.

2/27/96), 670 So. 2d 1328, writ denied, 1996-0809 (La. 5/10/96), 672 So. 2d

926; Thompson v. Capital Steel Co., 613 So. 2d 178 (La. App. 1 Cir. 1993),

writ denied, 617 So. 2d 936 (La. 1993). CMR’s written, promulgated

substance abuse policy meets the statutory requirements. The initial drug

test was performed at the hospital upon claimant’s admission as part of his

care and treatment following an at-work accident. Although not specifically

1
Exhibit 1 is actually a copy of the acknowledgment or agreement to the Drug &
Alcohol Policy signed by claimant Ronnie Griffith on December 10, 2013.
2
LAC 40:I.1501, et seq., 40 LA ADC Pt. I, §1501, et seq. were promulgated in
accordance with La. R.S. 23:1081(9) by the Department of Employment and Training,
Office of Workers’ Compensation, LR 16:851 (October 1990), and last updated more
than 30 years ago when repromulgated, LR 17:773 (August 1991).
6

requested by CMR, this drug screen, nonetheless, was done pursuant to his

employer’s drug testing policy. This assignment of error is without merit.

Claimant next argues that CMR’s requested drug test did not conform

with La. R.S. 49:1005, 1011, or the SAMHSA Guidelines, and the WCJ

erred in relying on it in making her factual findings in this matter.

Defendants contend that because Griffith was not tested under Title

49, its requirements, and the SAMHSA Guidelines it incorporates, are

irrelevant to the instant case.

Title 49 is entitled “State Administration.” La. R.S. 49:1001 is the

comprehensive drug testing statute that was enacted by the legislature in

1990, with an effective date of January 1, 1991. Generally, the statute

regulates the circumstances in which public sector employers, and with

significant limitations, private sector employers, may engage in drug testing

of employees. La. R.S. 49:1005(B) provides, in pertinent part that drug

testing as provided in this Subsection shall be performed in compliance with

the SAMHSA guidelines except as provided in this Chapter or pursuant to

statutory or regulatory authority under R.S. 23:1081 et seq.

Louisiana Revised Statute 23:1081(9) provides:

All sample collection and testing for drugs under this Chapter
shall be performed in accordance with rules and regulations
adopted by the assistant secretary which ensure the following:
…

(e) Sample testing shall conform to scientifically accepted
analytical methods and procedures. Testing shall include
verification or confirmation of any positive test result by gas
chromatography, gas chromatography-mass spectroscopy, or
other comparably reliable analytical method, before the result
of any test may be used as a basis for disqualification pursuant
to this Section. Test results which do not exclude the passive
inhalation of marijuana may not be used as a basis for
disqualification under this Chapter. However, test results
which indicate that the concentration of total urinary
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cannabinoids as determined by immunoassay equals or exceeds
fifty nanograms/ml shall exclude the possibility of passive
inhalation. (Emphasis added).

It is a fundamental rule of statutory construction that when two

statutes deal with the same subject matter, if there is a conflict, the statute

specifically directed to the matter at issue must prevail as an exception to the

statute more general in character. Burge v. State, 2010-2229 (La. 2/11/11),

54 So. 3d 1110; State v. Campbell, 2003-3035 (La. 7/6/04), 877 So. 2d 112.

This is a workers’ compensation case. Until and unless the legislature sees

fit to either amend La. R.S. 23:1081 or specifically make the Louisiana Drug

Testing Act and/or the SAMHSA Guidelines applicable to drug testing in

workers’ compensation cases, the plain language of R.S. 23:1081(9), i.e.,

that “all sample collection and testing for drugs under this Chapter shall be

performed in accordance with rules and regulations adopted by the assistant

secretary,” makes short shrift of claimant’s argument to the contrary.

Defense Exhibit #2 consists of a five-page excerpt of claimant’s

hospital records that were certified under La. R.S. 13:3715; this exhibit

contains the results from a urine drug screen panel collected from Griffith on

the date of the accident shortly after his arrival at the hospital. The analysis

of the sample returned a positive finding for cannabinoids or marijuana. For

a test to be used as the basis for a forfeiture of benefits under La. R.S.

23:1081(9)(e), there must be “verification or confirmation of any positive

test result by gas chromatography, gas chromatography-mass spectroscopy,

or other comparably reliable method.”

Defense Exhibit #3, admitted into evidence by agreement of the

parties, is a copy of the report detailing results of the confirmatory test

conducted by LabCorp on Griffith’s urine sample. This report identifies that
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the sample was obtained from University Health in Shreveport, contains

claimant’s name and date of birth, the date of collection, and the same

patient ID number contained at the bottom of the pages of the Ochsner LSU

health records entered into evidence as Exhibit #2. The LabCorp results

show compliance with La. R.S. 23:1081(9)(e)’s requirement for

confirmatory testing—the method for confirmation of the positive test result

was GC/MS, which stands for gas chromatography/mass spectroscopy.

Specifically, the reported test result was >400 nanograms of total

cannabinoids per milliliter, which is more than eight times the 50 ng/ml

threshold to exclude the possibility of passive inhalation of marijuana as set

forth in La. R.S. 23:1081(9)(e).

The results from the initial test performed at Ochsner LSU Shreveport

and the confirmatory test done by Labcorp constituted prima facie evidence

of Griffith’s intoxication at the time of the accident as set forth in La. R.S.

23:1081(5) and (8). At this point, it was incumbent upon claimant to rebut

the presumption of intoxication by showing that the intoxication was not a

contributing cause of the accident. La. R.S. 23:1081(12).

In his third assignment of error, Griffith argues that Dr. William

George’s report was not supported by the evidence, and it was error for the

WCJ to rely on it to disqualify him from benefits.

Defendants assert that claimant failed to offer any expert evidence to

counter the opinions expressed by Dr. George, and did not offer any other

scientific evidence in support of his position.

The following is excerpted from the WCJs’ reasons for judgment:

Claimant testified during the video conference proceedings …
that he and a crew were working on an airplane hangar at the
Monroe Regional Airport. The job required them to remove
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thin sheets of metal roofing and to replace them with new
sheets of metal. The old roof had skylights that also required
replacement. They were to be removed and covered with new
sheets of metal. During the process, the old skylights were to
be covered with old sheets of metal that were removed from the
roof. Each skylight was to be covered with a steel sheet that
was fastened down. [Griffith] contends the crew came down
from the roof sooner than expected. Therefore, he went up on
the roof to inspect their work. Upon arrival, he noticed some
screws had not been fastened properly. He contends a sheet
popped up and caused him to trip and to fall through one of the
skylights.

Additional testimony was presented through depositions.
Lance Stephenson was a co-employee of Claimant.
[Stephenson stated] they had a helper who took a piece of tin
up when he was not supposed to. He described the skylights as
being practically the same color as the roof. According to
[Stephenson], they were not very visible. He testified Claimant
stepped backwards and fell through the roof. He [stated] the
fall was due to the actions of the helper.

Jacob Cormier is also a co-employee of Claimant. According
to him, someone removed the cover sheet from the skylight and
Claimant fell through. According to Cormier, the sheets were
not to be removed from the skylights at the time they were
removed. He testified, “[I] watched him pass me by, and the
next minute [Claimant] was gone.” He [stated] he saw
Claimant fall because he was only a foot or two away from
him. He contends Claimant did not trip and fall as alleged by
Claimant.

Kevin Lloyd Mosely is another co-worker of Claimant. He also
worked on the job involving the roof of the hangar at the
airport. According to Mr. Mosley, you could tell the difference
between the skylights and the metal roof they were replacing.
He testified that the roof was a brownish color while the
skylight was a yellowish color. Mr. Mosley also testified that
the claimant was aware that the cover that was over the
skylight had been removed. According to Mr. Mosley, just
before the accident Claimant was working right beside the
skylight. He was about two feet away from it while screwing
down a piece of tin. He [stated] they were pulling up the tin.
The skylight was uncovered. They stopped to grab a screw gun
so that they could hang one more sheet, and then he heard
Claimant had fallen. He [stated] Claimant saw them remove
the cover. He contends the cover was removed by him and
another guy. He also [testified] Claimant was told that the tin
had been removed from the skylight.

10

Beto Elizondo is the owner of CMR Construction. He was
Claimant’s supervisor. He testified via deposition. He testified
there was a difference in the color of the skylights and the steel
sheets. He also testified that his investigation supported the
fact that Claimant lost his balance and fell.

Defendant’s Exhibit 6 is a report of Dr. William George, an
expert in the field of pharmacology and toxicology. It is his
opinion that Claimant was an acute/chronic user of marijuana
who more likely than not would have been impaired by
cannabinoids or marijuana at the time of his accident when he
fell through the skylight on the roof of the hangar.

A review of the testimony makes it clear that there are varying
descriptions of how the accident in this case occurred. There is
testimony that the skylight and the sheets of metal were similar
in color. There is testimony that Claimant tripped or lost his
balance, thereby causing his fall. There is also testimony the
Claimant knew the piece of tin previously covering the skylight
had been removed.

Nevertheless, it is also clear … the requirements of Louisiana
Revised Statute 23:1081(12) have not been met. Defendants
met their burden of proving intoxication. In addition, the
expert report of Dr. William George linked the intoxication to
the cause of the accident. There is a lack of any medical
evidence or expert opinion that contradicts the opinion of Dr.
George. Thus, in order to defeat the intoxication defense of his
employer, Claimant was required to prove that the intoxication
was not a contributing cause of the accident. In this case he did
not. The testimony of his co-workers failed to establish the
absence of intoxication and the determining factor that led to
Claimant’s fall. This Court notes that while the skylight and
the tin may have been similar in color, they were certainly
distinguishable in size, shape, and texture. According to Mr.
Elizondo, the skylights were made of fiberglass. It appears
Claimant was simply not looking where he was stepping. His
failure to do so does not contribute to his burden of proving
intoxication was not a contributing cause of the accident.

We have reviewed the record in its entirety, and while this Court

would have found otherwise had it been the fact-finder,3 we cannot say the

3
We note that all four of claimant’s co-workers witnesses testified unequivocally
that Griffith exhibited no signs of having been under the influence of marijuana on the
day of the accident, i.e., he did not have bloodshot eyes, did not smell of marijuana, was
not stumbling or clumsy, and had no problems getting onto or walking around the roof.
11

WCJ was manifestly erroneous or clearly wrong in finding that Griffith

failed to prove that intoxication was not a contributing cause of the accident.

Rejection of La. R.S. 23:1208 Fraud on Part of Claimant

In its answer to the appeal filed by claimant Ronnie Griffith, CMR

contends that the WCJ erred in failing to make a determination on the merits

of its claim that Griffith committed fraud as defined by La. R.S. 23:1208.

According to CMR, Griffith lied about his past use of marijuana and also

claimed to have stopped smoking marijuana. Both of these statements were

proven false by Dr. George’s report. It is CMR’s contention that claimant

should be ordered to forfeit all future benefits and pay restitution of any and

all benefits previously paid to him or on his behalf for his false

representations and statement.

Griffith asserts that in order for CMR to be entitled to a finding of

fraud under La. R.S. 23:1208, it must establish a false statement or

representation willfully made for the purpose of obtaining or defeating any

benefit or payment. Because defendant failed to show any inconsistency,

and its means of challenging Griffith’s statements was not permitted (i.e.,

use of an expert’s report to challenge Griffith’s credibility), the WCJ did not

err in rejecting this claim.

Louisiana Revised Statute 23:1208 authorizes forfeiture of benefits

upon proof that (1) there is a false statement or representation; (2) it is

willfully made; and (3) it is made for the purpose of obtaining or defeating

any benefit or payment. Resweber v. Haroil Construction Co., 1994-2708

(La. 9/5/95), 660 So. 2d 7; Beck, supra; Freeman v. Chase, 42,716 (La. App.

2 Cir. 12/5/07), 974 So. 2d 25. Forfeiture is a harsh remedy and must be

strictly construed. Wise v. J.E. Merit Constructors, Inc., 1997-0684 (La.
12

1/21/98), 707 So. 2d 1214; Beck, supra; Freeman, supra. An inadvertent

and inconsequential false statement will not result in the forfeiture of

benefits. Beck, supra; Freeman, supra. La. R.S. 23:1208 does not penalize

any false statement, but only those willfully made for the purpose of

obtaining benefits. Resweber, supra; Beck, supra. The WCJ’s finding or

denial of forfeiture will not be disturbed on appeal absent manifest error.

Id.; Freeman, supra.

The fact that the WCJ declined to specifically address this issue in its

judgment (which we note was approved as to form by both attorneys) does

not mean she did not rule on defendant’s claim. As noted by the Louisiana

Supreme Court in In re McCool, 2015-0284 (La. 6/30/15), 172 So. 3d 1058,

1075, cert. denied, 577 U.S. 1120, 136 S. Ct. 989, 194 L. Ed. 2d 6 (2016), it

is well established that those matters not expressly granted in a judgment or

order of a court are considered denied. See also, M.J. Farms, Ltd. v. Exxon

Mobil Corp., 2007-2371 (La. 7/1/08), 998 So. 2d 16; Bradley v. St. Francis

Medical Center, 51,572 (La. App. 2 Cir. 9/27/17), 244 So. 3d 722; Wynn v.

Luck, 47,314 (La. App. 2 Cir. 9/26/12), 106 So. 3d 111; and, Anthony’s Auto

Sales, Inc. v. Shephard, 600 So. 2d 125 (La. App. 2 Cir. 1992).

We examined the WCJ’s factual findings under the manifest error-

clearly wrong standard of review and found that the record supported her

conclusion that claimant failed to rebut the presumption of intoxication in

this case; the same standard of review is applicable to the factual findings in

support of her denial of CMR’s fraud claim. The record supports the WCJ’s

determination that there were no misrepresentations made willfully and for

the purpose of obtaining benefits. We find no error in the WCJ’s conclusion

that defendant failed to carry its burden of proof on this issue.
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CONCLUSION

For the reasons set forth above, the judgment of the workers’

compensation judge is affirmed. Costs of this appeal are assessed equally

between claimant, Ronnie Griffith, and defendants, CMR Construction &

Maintenance Resources and LCTA Workers’ Compensation.

AFFIRMED.

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