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Comp approved despite dead worker's positive drug test

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Comp approved despite dead worker's positive drug test

The daughter of a Texas worker who tested positive for marijuana at the time of his death is entitled to workers compensation death benefits despite the rebuttable presumption that an employee is intoxicated if a blood test or urinalysis reveals the use of a controlled substance, a Texas appellate court has ruled.

Kody Ryan Cates worked for Unique Staff Leasing Ltd., a self-insured temporary employment company that placed the lineman with Northeast Services d/b/a Horton Tree Services, court records show.

Mr. Cates wasn't wearing his safety harness in July 2010 when he fell 15 feet from a cherry picker, according to records. He died days later as result of severe head trauma. It's unclear whether he was wearing his safety helmet at the time of the accident.

A urinalysis performed at the hospital was positive for marijuana, and a blood test performed after his death revealed similar results, records show.

Workers comp death benefits were sought on behalf of Mr. Cates' minor daughter, according to records. The Texas Department of Insurance's Division of Workers' Compensation found that Mr. Cates was not intoxicated at the time of his fatal accident, but Unique Staff Leasing filed for judicial review with the 29th Judicial District Court in Palo-Pinto County. A physician testified at trial that the results of the blood test and urinalysis alone don't prove Mr. Cates was intoxicated at the time of his death, records show. Rather, the physician said testimony from witnesses who observed Mr. Cates' behavior was necessary to determine whether he was intoxicated.A physician appointed by Unique Staff Leasing, however, testified that the blood test and urinalysis results, as well as Mr. Cates' failure to wear his safety harness, show he was intoxicated when he died, according to records.

Both physicians agreed marijuana can show up in a urinalysis weeks after it was used.

Records show that Texas law defines intoxication as “not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body” of a controlled substance, such as marijuana.

Several of the people who interacted with Mr. Cates' on the day he died testified that he had not smoked marijuana and that he acted the same as he always did, according to records. In addition, some of his colleagues said they also failed to wear their safety harnesses at times since they can get in the way, “especially (on) quick jobs similar to that which (Mr. Cates) was performing on the date of his injury.”

The jury ultimately found that Mr. Cates was not intoxicated at the time of the accident.

His family then filed an application for attorney's fees and a request for a final judgment, but Unique Staff Leasing argued that Mr. Cates' family wasn't entitled to collect attorney's fees, records show.

A separate trial was held on the topic, and a different jury awarded Mr. Cates' family $41,413.22 in attorney's fees for legal representation in the trial court and prospective attorney's fees in various amounts, according to records.

A three-judge panel of Texas' 11th Court of Appeals on Friday addressed the findings from each trial, unanimously affirming the judgment of the first trial court and reversing the judgment of the second as it related to the award of attorney's fees.

In the first trial, “each expert provided competing opinions regarding whether (Mr. Cates) was intoxicated, and the lay witnesses provided competent testimony that (he) was acting normally on the day of the accident,” the ruling states. “This is not a case in which the jury's finding is so against the overwhelming weight of the evidence as to be clearly wrong and unjust.”

The appellate court, however, agreed with Unique Staff Leasing's argument regarding attorney's fees, as they're generally “not recoverable absent an agreement between the parties or a statute that provides otherwise,” according to the ruling.

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