Terry L. Derouen v. Iberia Sugar Cooperative, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-605

TERRY L. DEROUEN

VERSUS

IBERIA SUGAR CO-OPERATIVE, INC.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 9,
PARISH OF IBERIA, NO. 03-6371,
ELIZABETH C. LANIER, WORKERS’ COMPENSATION JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Sylvia R. Cooks, Michael G. Sullivan, and James T. Genovese,
Judges.

AFFIRMED.

R. Michael Moity, Jr.
The Moity Law Firm
114 West Washington Street
New Iberia, Louisiana 70560
Counsel for Plaintiff/Appellee:
Terry L. Derouen

Edward P. Landry
Landry, Watkins, Repaske & Breaux
Post Office Drawer 12040
New Iberia, Louisiana 70560-2040
Counsel for Defendant/Appellant:
Iberia Sugar Co-operative

SULLIVAN, Judge.

Iberia Sugar Co-operative, Inc. (Iberia) appeals a judgment in favor of Terry

Lee Derouen, in which the workers’ compensation judge (WCJ) (1) rejected its

defenses of intoxication and fraud; (2) awarded Mr. Derouen disability benefits and

medical expenses; and (3) assessed Iberia with penalties of $500.00 and attorney fees

of $2,000.00. For the following reasons, we affirm the judgment of the Office of

Workers’ Compensation (OWC) in all respects.

Discussion of the Record

Mr. Derouen filed a disputed claim for compensation alleging that, on March 7,

2003, he sustained third degree burns on his left foot and leg while cleaning the

grinding mills at work with water heated by a pressure washer. Iberia denied the

claim, raising the defenses of (1) intoxication, based upon the results of a drug test

taken three days after the accident that was allegedly positive for cocaine, and (2)

fraud, based upon Mr. Derouen’s denials of cocaine use.

At trial, Mr. Derouen testified that he was washing down one of the mills when,

at approximately 11:00 a.m., he felt a burning sensation on his left leg and foot.1

After noticing that parts of his slicker suit had melted, he concluded that hot water

from the pressure washer must have splashed onto him and seeped through his jeans

and boot. He testified that he did not report the incident because he “didn’t think

anything of it” and that he completed the rest of his shift, leaving at 3:00 p.m., even

though his leg and foot were “stinging a little.” At home over the following weekend,

however, he noticed that the affected area became swollen and painful and started to

peel. On Saturday, he began taking Lortab for pain, but by Sunday evening, he

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There is some confusion in the record as to whether the accident occurred on a Thursday or
a Friday. The judgment of the OWC, however, finds that the accident occurred on March 7, 2003,
which the calendar indicates was a Friday.

realized that he could no longer treat the injury himself. At that time, he went to the

emergency room at Dauterive Hospital in New Iberia, where he was given various

drugs, including morphine for pain relief and IV antibiotics to prevent infection. The

next day, he was transferred to the burn unit of Baton Rouge General Hospital, where

he underwent surgery for his injuries.

William Klentzman, Iberia’s chief engineer, testified that he dropped off a drug

collection kit at the hospital on Monday, the first day he was informed of the accident,

so that a drug test could be administered before Mr. Derouen was moved to Baton

Rouge. Mr. Derouen recalled that an unidentified male came to his hospital room to

obtain a drug specimen, but he stated that he was “woozy” from the pain medication

and that he needed help placing his initials on the drug collection kit. Mr. Klentzman

testified that he was informed the test was positive for cocaine, but he acknowledged

that the report did not state the metabolic level of cocaine and it did not indicate

whether there was a positive result for Lortab or morphine as well. Mr. Klentzman

also testified that Iberia had received copies of subsequent positive drug tests from

a drug rehabilitation program that Mr. Derouen participated in, but he could not say

whether those tests also included positive results for the pain medication that Mr.

Derouen was taking at that time.

The drug screen report that Iberia introduced into the record lists as its only

“Result” a notation of “POSITIVE FOR COCAINE.” That report does not indicate

the level or amount of cocaine allegedly present in Mr. Derouen’s system, and it does

not contain any information regarding chain of custody of sample taken or the

presence of other drugs that were administered during Mr. Derouen’s hospital stay.

We also note that the report contains the notation, “Internal use only.”

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At trial, Mr. Derouen denied that he used cocaine either before or after the

accident. He explained that a physician informed him that he would test positive “for

drugs” because of his Lortab use, which continued through November of 2003. He

also admitted that he enrolled in a drug rehab program, but he testified that he did so

only because Iberia required his participation in the program as a condition to keeping

his job. He disputed the results of subsequent drug screens that were allegedly

positive, claiming that, despite his repeated requests, no one in the drug treatment

program ever showed him a copy of those tests.

After taking the matter under advisement, the WCJ rendered a judgment in

favor of Mr. Derouen, stating that Iberia “cannot avail itself of the defenses listed in

La.R.S. 23:1081 [intoxication] because it did not meet its burden of proof and did not

meet the requirements established in La.R.S. 23:1081” and that Mr. Derouen “did not

violate La.R.S. 23:1208 [fraud].”

Opinion

Intoxication

In its first assignment of error, Iberia argues that the WCJ erred in rejecting its

defense of intoxication, given the presumption of intoxication afforded the employer

in La.R.S. 23:1081(5) and (12). Mr. Derouen contends that Iberia is not entitled to

that presumption because the drug test was not administered “immediately” after the

injury. He also argues that the WCJ’s conclusion that Iberia did not meet its burden

of proof on this issue is supported by the lack of any evidence as to the chain of

custody of the drug specimen taken and the incompleteness of the report, in that it

failed to indicate the level of cocaine allegedly detected and the presence of pain

medications that were indisputably administered before the test was taken.

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Louisiana Revised Statutes 23:1081(1)(b) provides that no compensation shall

be allowed for an injury caused by the injured employee’s intoxication at the time of

the injury. Section 1081 further provides in part:

(2) In determining whether or not an employer shall be exempt
from and relieved of paying compensation because of injury sustained
by an employee for any cause or reason set forth in this Subsection, the
burden of proof shall be upon the employer.

....

(5) If there was, at the time of the accident, evidence of either on
or off the job use of a nonprescribed controlled substance as defined in
21 U.S.C. 812, Schedules I, II, III, IV, and V, it shall be presumed that
the employee was intoxicated.

....

(7)(a) For purposes of this Section, the employer has the right to
administer drug and alcohol testing or demand that the employee submit
himself to drug and alcohol testing immediately after the alleged job
accident.

(b) If the employee refuses to submit himself to drug and alcohol
testing immediately after the alleged job accident, then it shall be
presumed that the employee was intoxicated at the time of the accident.

(8) In order to support a finding of intoxication due to drug use,
and a presumption of causation due to such intoxication, the employer
must prove the employee’s use of the controlled substance only by a
preponderance of the evidence. In meeting this burden, the results of
employer-administered tests shall be considered admissible evidence
when those 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.

(9) All sample collection and testing for drugs under this Chapter
shall be performed in accordance with rules and regulations adopted by
the director which ensure the following:

(a) The collection of samples shall be performed under
reasonably sanitary conditions.

(b) Samples shall be collected and tested with due regard to the
privacy of the individual being tested, and in a manner reasonably

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calculated to prevent substitutions or interference with the collection or
testing of reliable samples.

(c) Sample collection shall be documented, and the
documentation procedures shall include:

(i) Labeling of samples so as reasonably to preclude the
probability of erroneous identification of test result; and

(ii) An opportunity for the employee to provide notification of
any information which he considers relevant to the test, including
identification of currently or recently used prescription or
nonprescription drugs, or other relevant medical information.

(d) Sample collection, storage, and transportation to the place of
testing shall be performed so as reasonably to preclude the probability
of sample contamination or adulteration; and

(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 any disqualification pursuant to this Section. Test results which do
not exclude the possibility of 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
cannabinoids as determined by immunoassay equals or exceeds fifty
nanograms/ml shall exclude the possibility of passive inhalation.

....

(12) Notwithstanding any language to the contrary, once the
employer has met the burden of proving intoxication at the time of the
accident, it shall be presumed that the accident was caused by the
intoxication. The burden of proof then is placed upon the employee to
prove that the intoxication was not a contributing cause of the accident
in order to defeat the intoxication defense of the employer.

(Emphasis added.)

As explained in Forrester v. New Orleans Iron Works, 03-1194, p. 3 (La.App.

5 Cir. 2/23/04), 869 So.2d 216, 218: “[T]he statute leads to two rebuttable

presumptions: first, that a positive drug test establishes the presumption of

intoxication, and second, that intoxication was presumed to have caused the

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accident.” If these presumptions apply, then the employee has the burden of proving

that the intoxication was not a contributing cause of the accident. Id. However, the

court in Fisher v. Westbank Roofing, 95-964, p. 7 (La.App. 5 Cir. 2/27/96), 670 So.2d

1328, 1331, writ denied, 96-809 (La. 5/10/96), 672 So.2d 926, recognized that “for

an employer to take advantage of the statutory presumption of intoxication created

by La.R.S. 23:1081, the claimant must be tested for drug use immediately after the

accident.” See also Reuben v. Tidewater Marine, 97-527, p. 4 (La.App. 5 Cir.

5/13/98), 712 So.2d 263, 264, writ denied, 98-1486 (La. 9/4/98), 721 So.2d 916

(emphasis added), in which the court stated: “The immediacy of the test is an

essential element for the presumption of intoxication.”

In Fisher, 670 So.2d 1328, the employer had requested a drug screen to be

performed on the day of the accident, but that request was not carried out until six

days later. Even though the delay in testing was not attributable to the employer, the

court nonetheless found that “the immediacy requirement of R.S. 23:1081(7)(a) had

not been met and, therefore, the presumption was not available.” Id. at 1331. In

rejecting the argument that La.R.S. 23:1081(8) allows an employer to test an

employee at any time after an accident and to receive the benefit of the presumption

of intoxication as long as the test is conducted pursuant to a written and promulgated

substance abuse policy, the court stated: “If this Court were to accept the reasoning

of the defendants, employers could possibly use the results of drug tests taken weeks

or months after an accident to bar a claim. Such an interpretation of the law is

illogical and we reject it.” Id. Although the employer in Fisher was not entitled to

the benefit of the presumption of intoxication, the untimely drug screen was still

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admissible as one piece of evidence of intoxication because the employer had a

written and promulgated substance abuse policy.

In Reuben, 712 So.2d 263, the court applied a similar analysis in the case of an

employee who did not report his accident until seven days after it occurred.

Concerning the drug screen taken at that time, the court stated:

Although the employer may not use the test to assert the presumption of
intoxication and shift the burden to the claimant to disprove that he was
intoxicated at the time of the accident, the results of the drug screening
are admissible into evidence and can be used along with other evidence
to show the claimant was intoxicated at the time of the accident.

Id. at 264.

In the present case, the language in the written judgment indicates that the WCJ

did not apply the presumption of intoxication in favor Iberia, so that the burden of

proof never shifted to Mr. Derouen to prove that intoxication was not a contributing

cause of the accident. We find no error in this analysis, given the facts of this case

and the jurisprudence discussed above. We further find no error in the WCJ’s

conclusion that Iberia failed to prove that Mr. Derouen was intoxicated at the time of

the accident. The only evidence to this effect was a drug screen taken three days after

the accident. The entire substance of the drug screen report was the notation

“POSITIVE FOR COCAINE.” Without any indication as to the level of cocaine

detected at the time of the test and expert testimony interpreting that information, the

report sheds no light on Mr. Derouen’s condition at the time of the accident.

Additionally, the accuracy of its result is subject to question in that the record does

not contain any information on the chain of custody of the sample used and the report

does not refer to the other drugs that were administered to Mr. Derouen during his

hospital stay.

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Fraud

In its second assignment of error, Iberia argues that Mr. Derouen willfully

made false statements for the purpose of obtaining workers’ compensation benefits

when he denied any cocaine use, given that Mr. Derouen tested positive after this

accident, enrolled in a drug treatment program, and tested positive while in the

program. Mr. Derouen testified that he only enrolled in the treatment program

because Iberia required him to do so and that, despite his repeated requests to see the

drug tests administered in the program, the rehab counselors refused to show them to

him. He also testified that during his participation in the drug treatment program he

was still taking pain medications, including Lortab. He further testified that he

successfully completed the program and that he had to pass a drug screen before he

could obtain his present employment.

Louisiana Revised Statutes 23:1208 provides in part:

A. It shall be unlawful for any person, for the purpose of
obtaining or defeating any benefit or payment under the provisions of
this Chapter, either for himself or for any other person, to willfully make
a false statement or representation.

....

E. Any employee violating this Section shall, upon determination
by workers’ compensation judge, forfeit any right to compensation
benefits under this Chapter.

In Douglas v. Grey Wolf Drilling Co., 03-515, p. 9 (La.App. 3 Cir. 11/5/03),

858 So.2d 830, 836 (citation omitted), we stated that “because statutory forfeiture is

a harsh remedy, it must be strictly construed. Whether an employee has forfeited his

right to workers’ compensation benefits is a question of fact that will not be disturbed

on appeal absent manifest error.”

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Implicit in the WCJ’s finding that Mr. Derouen did not violate La.R.S. 23:1208

is a favorable credibility assessment. We decline to disturb that finding on appeal.

We note that Mr. Derouen’s testimony that he enrolled in the drug treatment program

at Iberia’s request is supported by the fact that Iberia’s address appears on the reports

generated by that program and by Mr. Klentzman’s testimony that Iberia received

copies of those reports. We have already discussed the problems regarding the drug

screen taken after the accident. Concerning the records from the treatment program,

we note that the counselor’s reports are based upon forms that are otherwise

typewritten but contain a handwritten notation of “positive for cocaine,” suggesting

that other documents not present in the file were used to prepare them. We also note

an apparent discrepancy in that those records contain what appears to be two copies

of the same report, yet only one copy has the “positive for cocaine” notation written

on it. On the record before us, we find no error in the WCJ’s decision not to order

forfeiture of benefits.

Penalties and Attorney Fees

In its final assignment of error, Iberia argues that the WCJ erred in imposing

penalties and attorney fees, as it reasonably controverted Mr. Derouen’s claims. We

disagree. Louisiana Revised Statutes 23:1201(F) subjects the employer or insurer to

penalties and attorney fees for failure to pay benefits owed, unless the claim is

reasonably controverted or if the nonpayment results from conditions beyond the

control of the employer or insurer. It is well settled in this circuit that “[t]he decision

to award penalties and attorney fees is a factual determination that will not be

reversed on appeal absent a finding of manifest error.” Harris v. Christus St. Patrick

Hosp., 02-1502, p. 12 (La.App. 3 Cir. 10/22/03), 857 So.2d 1278, 1286, writ denied,

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03-3193 (La. 2/13/04), 867 So.2d 697. In the present case, Iberia initially denied the

claim based upon the positive drug screen taken after the accident, notwithstanding

the time that had elapsed between the accident and the test, and the subsequent drug

screens taken in the treatment program. Later, Iberia cited statements in Mr.

Derouen’s deposition in support of its claim for fraud. However, the subsequent drug

screens had no probative value as to Mr. Derouen’s condition on the day of the

accident, and the statements in Mr. Derouen’s deposition did not occur until seven

months after the accident. We find no error in the WCJ’s decision to impose penalties

and attorney fees in this case.

Decree

For the above reasons, the judgment of the Office of Workers’ Compensation

is affirmed. Costs of this appeal are assessed to defendant-appellant, Iberia Sugar Co-

operative, Inc..

AFFIRMED.

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