Without drug test results, man awarded Workers' Comp

By John O'Brien | Apr 2, 2013

CHARLESTON – If a man’s employer wants to claim he was under the influence of drugs when he was injured on-the-job in a vehicle accident, it needs to include drug test results, the state Supreme Court has ruled.

In a unanimous memorandum decision issued March 27, the state Supreme Court affirmed a 2010 decision by the Workers’ Compensation Office of Judges in the case of Earl Akers, who was in a car accident on Aug. 14, 2009, while working for Tire Centers, Inc.

Akers’ injuries included a cervical strain, thoracic strain, lumbar strain and a meniscus tear of the left knee.

Tire Centers said drug tests administered after the accident came back positive for Oxycodone and Benzodiazepines and benefits should be denied because Akers’ injuries were caused by his own intoxication.

“The inference of the record is that a drug test was found positive for Oxycodone and Benzodiazepines,” the Office of Judges ruled. “However, no drug test results were made part of the record.”

The Supreme Court joined the Board of Review in affirming the Office of Judges’ ruling. It cited Rule 6(b) of the Rules of Appellate Procedure in deciding the drug test results should not be added to the record.

“Anything not filed with the lower tribunal shall not be included in the record on appeal unless the Court grants a motion for leave to supplement the record on appeal for good cause shown,” the rule says.

No drug test results were made a part of the record to the Office of Judges, which reversed a claims administrator’s ruling.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

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