BY RONALD HILLEY
Lingo v. Early County Gin, Inc.,
2018 Ga. App. LEXDIS 328 (June 1, 2018)
This case finds that the Employer failed to prove that a urine sample taken was obtained by the category of medical personnel permitted to obtain the sample as required by O.C.G.A. § 34-9-415(b). Absent proof of compliance with O.C.G.A. § 34-9-415, Employer was not entitled to the rebuttable presumption pursuant to O.C.G.A. § 34-9-17 (b) that Employee’s injury was due to misconduct, specifically marijuana intoxication. The Court of Appeals accepted an application for review and reversed an award rendered by the appellate division of the Georgia State Board of Workers’ Compensation and affirmed by Early County Superior Court. The Court of Appeals held that the failure to comply with O.C.G.A § 34-9-415 was a matter of law.
Employee Lingo’s job required him to guide module trucks (trucks laden with unginned cotton) to the loading dock of his Early County Gin, Inc. (“Employer”). Lingo would assist with both directing the trucks and unloading. Lingo was injured when a truck backed up and crushed him against the loading dock causing multiple internal injuries. At the time of the injury, Lingo was facing the loading dock and did not see the truck backing up. Furthermore, the truck failed to have an operational back-up beeper. Lingo was taken to Dothan, Alabama where he immediately went into surgery.
Employer sent a lab technician to obtain a urine sample from Lingo. When she arrived Lingo was still in surgery. The lab tech requested that someone in the operating room obtain a urine sample. The urine sample was given to the lab tech. The lab tech did not know either the identity or occupation of the person who obtained the sample. Without proof that the person acquiring the sample is a person of the category permitted to obtain the sample, employer cannot benefit from the presumption of O.C.G.A. § 34-9-17 (b). ●
About the Author
Ron Hilley is a founder of Hilley & Frieder in Atlanta. A graduate of the Emory University School of Law, his practice specializes in personal injury, medical malpractice, workers’ compensation, and wrongful death. He is active in numerous bar associations both in Georgia and across the country.