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Seeing can be deceiving, legal experts say

Seeing can be deceiving, legal experts say

Witnesses may or may not help an employer's case in defending against a workers compensation claim due to the employee being intoxicated at the time of an accident.

“Historically, we have to look at a whole variety of factors,” said Greg McKenna, Itasca, Illinois-based vice president and counsel for governmental affairs at Gallagher Bassett Services Inc. “Depending on the nature of the intoxicant, unless you have both objective — blood serum, urine test — plus evidence of intoxication — behavior, testimony — it may be tougher to prove.”

Robert Molnar, North Haven, Connecticut-based partner and vice president of private investigative agency Lemieux & Associates L.L.C., said investigating the employee's behavior often is part of an intoxication defense.

“This would be interviewing co-workers,” he said. “Drinking and drugs; those are habits. If they drank (at work) once, they did it before. People are creatures of habit. Is it the first time or the first time (the worker) got caught? You can build a case around that.”

Yet legal experts are skeptical that eyewitnesses will ever fill the marijuana testing gap.

“I believe there is going to be a bias toward rigorous scientific tests” in cases involving marijuana, Mr. McKenna said. “In my opinion, it seems that there would be a preference (to rely on the test) as opposed to taking someone's nonscientific view of behavior.”

Albert B. Randall Jr., Baltimore-based president of Franklin & Prokopik P.C., said an employee's attorney also could question the validity of a witness reporting that a person was intoxicated.

“Without training to show what impaired looks like, I think it is highly unlikely that a court (would accept it),” he said.

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