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Lingo v. Early County Gin, Inc.

Court of Appeals of Georgia, Third Division

June 1, 2018

LINGO
v.
EARLY COUNTY GIN, INC.

          ELLINGTON, P. J., BETHEL, J., and SENIOR APPELLATE JUDGE PHIPPS

          ELLINGTON, PRESIDING JUDGE.

         Earnest Lingo appeals from the order of the Superior Court of Early County which affirmed the decision of the Appellate Division of the State Board of Workers' Compensation denying benefits to Lingo based primarily on a positive drug screen. The appellate division found that Lingo's employer, Early County Gin, Inc. ("the Employer"), was entitled to a rebuttable presumption pursuant to OCGA § 34-9-17 (b) that Lingo's workplace injury was caused by his illegal marijuana use and that Lingo had failed to present evidence overcoming that presumption. Pursuant to a granted application for a discretionary appeal, Lingo contends that (1) the superior court erred in failing to consider whether the Employer met the statutory prerequisites for availing itself of the rebuttable presumption of OCGA § 34-9-17 (b); (2) the superior court erred in finding a sufficient chain of custody for Lingo's urine sample; and (3) even if the rebuttable presumption applied, Lingo submitted sufficient evidence to rebut the presumption that his drug use caused the workplace accident. For the reasons that follow, we vacate the order of the superior court and remand to the appellate division.

In reviewing a workers' compensation award, this Court must construe the evidence in the light most favorable to the party prevailing before the appellate division. The findings of the State Board of Workers' Compensation, when supported by any evidence, are conclusive and binding, and neither the superior court nor this Court may substitute itself as a factfinding body in lieu of the State Board.

(Footnotes omitted.) Laurens County Bd. of Educ. v. Dewberry, 296 Ga.App. 204, 206 (674 S.E.2d 73) (2009). However, "[w]e review questions of law in a workers' compensation appeal de novo upon a plain legal error standard of review." Selective HR Solutions, Inc. v. Mulligan, 305 Ga.App. 147, 148 (699 S.E.2d 119) (2010).

         So viewed, the evidence shows that Lingo worked at a cotton gin company as a "module feeder." He directed drivers as they backed their large, heavily-laden module trucks into a loading dock area where he would then assist in unloading modules of unginned cotton onto a platform for ginning. On November 20, 2014, Lingo and one other employee, Raul Flores, were on duty at the loading dock. Early that afternoon, as Lingo was sweeping up cotton from the module table near the gin, a truck began backing toward the loading dock. Because Lingo was facing the loading dock, he did not see the truck as it backed in. The truck struck Lingo from behind, crushing him against the loading dock. The truck that struck Lingo did not have a functional back-up beeper. The evidence is disputed as to whether Flores directed the truck driver to back into the loading area.

         There is conflicting evidence regarding whether Lingo should have been able to hear the truck as it backed up, despite the absence of a warning beeper. The noise of the cotton gin machinery running nearby was sufficiently loud to preclude normal conversation. Lingo's employer offered him earplugs to protect his hearing, but Lingo was not wearing them at the time of the accident. Lingo presented evidence from an expert witness who took sound measurements at the loading dock and opined that "the sound of the module truck was not distinguishable from the background noise" of the cotton gin. Thus, the expert opined that, regardless of Lingo's level of alertness, he would not have been able to hear the truck backing up. The gin's general manager, however, testified that the truck's air brakes were loud enough to be audible over the general din of the workplace.

         Lingo was taken to a hospital in Dothan, Alabama for emergency surgery to address several injuries, including pelvic, chest, and rib fractures and damage to his stomach, spleen, and colon. The Employer requested a post-injury drug test from a lab technician that it had retained, and she went to the hospital to obtain a urine sample. Because Lingo was undergoing surgery, the technician was not permitted in the operating room. The technician told an operating room nurse that she needed a urine sample. Shortly after the request, the nurse returned with a urine sample, which the technician bagged, sealed, and labeled. The technician testified that she has no first-hand knowledge of who collected the sample or what protocols that person followed. The sample was taken to a drug testing company, and a subsequent analysis revealed the presence of cannabinoid metabolites.

         One of Lingo's co-workers, Jaime Garza, testified that Lingo was a friend of his, that they smoked marijuana together daily, and that he and Lingo had been smoking marijuana on the premises throughout the morning of the accident. He claimed Lingo must have been really "messed up" not to hear the truck's beeper, which he argued Lingo should have heard if he was not texting on his phone. He claimed that Lingo kept a "pouch" of marijuana on him. Lingo disputed the testimony, testifying that he only smoked marijuana when he was not working. The Employer's general manager testified that he had no evidence that the employees were intoxicated on the job or were smoking marijuana on the premises. None of the employees had failed any of the random drug screens conducted during 2014. The record shows that no marijuana or drug paraphernalia was recovered from the clothing that Lingo had been wearing on the day of the accident. The ALJ found that Garza's testimony had "significant discrepancies" and that Garza lacked credibility.

         Lingo also presented an expert witness who criticized the lab's chemical analysis of Lingo's urine, noting that because the results were not "validity tested, " he could make no judgment on whether the urine sample had been diluted or concentrated. He also noted that a urine sample is generally inadequate to evaluate the extent to which a person is under the influence of marijuana for the following reasons. When marijuana is smoked, it will be metabolized out of a person's "blood system from anywhere between half an hour and an hour and a half, " depending on a number of factors, such as the person's height and weight. However, because marijuana metabolites are "lipophilic" and can be stored in fat cells, it is possible that metabolites will continue to leach into the urine for days or even weeks after the drug was last smoked. The expert asserted that only a blood plasma test accurately reveals the extent to which marijuana is currently affecting cognition. Thus, the expert opined that the lab results neither validated nor discredited Lingo's account of his marijuana usage. Rather, he concluded that the urine test provided no "empirical data that [Lingo] was or was not impaired" at the time of the accident.

         The Employer asserted it was not liable under OCGA § 34-9-17 (b) (2), which provides in relevant part that:

If any amount of marijuana . . . is in the employee's blood within eight hours of the time of the alleged accident, as shown by chemical analysis of the employee's blood, urine, breath, or other bodily substance, there shall be a rebuttable presumption that the accident and injury or death were caused by the ingestion of marijuana[.]

         The ALJ found that the Employer was unable to avail itself of this presumption because the Employer was unable to show who had obtained the sample as the lab technician did not observe the sample being taken and there was no testimony or other evidence establishing this initial link in the chain of custody. Absent the evidence of the urine sample, the ALJ found the Employer was otherwise unable to carry its burden of proving that the accident was caused by Lingo's marijuana use and awarded him benefits.

         The Employer appealed to the appellate division, which reversed. The appellate division relied upon chain of custody rulings from criminal cases, holding that any defect in the chain of custody went to the weight of the evidence rather than its admissibility. Because there was no real suggestion that the urine sample had been tampered with, the appellate division found it sufficiently reliable to permit the Employer to avail itself of the rebuttable presumption that Lingo's injuries were caused by his use of marijuana. The appellate division further found that Lingo failed to rebut the presumption of causation because the evidence was conflicting regarding whether he could ...


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