WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND CIRCUIT,
OFFICE OF WORKERS' COMPENSATION, DISTRICT 1E
La. R.S. 23:1081 sets forth defenses to a claim for
worker's compensation benefits, and disallows
compensation for an injury caused by the injured
employee's intoxication at the time of the injury. La.
R.S. 23:1081(1)(b). However, the
statute also provides that all drug testing must be verified
or confirmed by certain methods before the result of the test
"can be used as a basis for any disqualification
pursuant to this Section." La. R.S.
23:1081(9)(e). In this case,
Jerome Parson ("Claimant") alleged he was injured
on November 25, 2016, as a result of an accident incurred
during the course of his employment with Truck Parts and
Equipment, Inc. ("Employer"). A drug test
administered the following day came back positive. No
confirmation testing was performed. Claimant filed a Disputed
Claim for Compensation on August 22, 2017. The employer filed
an answer, asserting an affirmative defense on the ground
claimant was intoxicated at the time of the accident.
Claimant filed a motion for summary judgment and a motion to
strike the affirmative defense, asserting the drug test was
unconfirmed and therefore inadmissible under La. R.S.
judge granted the motion for summary judgment but denied the
motion to strike. Concerned his employer would attempt to use
the unconfirmed drug test as evidence to prove claimant was
intoxicated as part of a fraud defense under La. R.S.
23:1208,  claimant subsequently filed
a motion in limine, asserting the unconfirmed drug test was
inadmissible for any purpose, including the employer's
fraud claim under La. R.S. 23:1208. The OWC judge granted the
motion in limine, reasoning:
Okay. After reviewing the case submitted by [the employer],
considering the evidence and argument of both counsel, the
court finds that the defendants are able to use any
admissible evidence to support a defense of intoxication and
fraud except the evidence concerning the drug test results or
any reports relying on those results. The unconfirmed,
unverified drug test administered to claimant cannot be used
to assist defendants in meeting its burden of proving
intoxication or fraud. This court cannot exclude the test due
to its failure to meet statutory requirements and then allow
it simply because defendants chose a new defense to present.
Therefore, the motion in limine is granted.
review, the majority of the court of appeal granted the employer's writ
application and reversed the ruling of the OWC judge,
applicants, Truck Parts & Equipment, Inc., and LCTA
Workers' Comp, seek supervisory review of two rulings
made by the workers' compensation judge granting a motion
in limine to exclude an unconfirmed drug screen from evidence
for all purposes and the denial of a motion to reconsider
La. R.S. 23:1081 specifically lays out the requirements for
the use of drug screens to prove an intoxication defense and
how the employer may avail themselves of the presumption.
Specifically, La. R.S. 23:1081(9)(e) requires confirmation
testing before a positive test can be used as a basis for
disqualification for purposes of an intoxication defense
only. The statute does not provide authority for the
exclusion of the unconfirmed drug screens from evidence for
use of a fraud claim under La. R.S. 23:1208. Rather, the use
of such evidence goes to the weight and not the admissibility
of the evidence. In excluding the unconfirmed drug screen
from evidence for all purposes, the workers' compensation
judge abused her discretion.
Accordingly, the writ application is hereby granted and the
rulings granting the motion in limine and denying the motion
to reconsider are reversed.
the court of appeal erred in reversing the ruling of the OWC
judge. Given the gravity of denying compensation benefits to
an injured worker, the evidence used to prove
disqualification or forfeiture of those benefits must be
deemed competent. It is undisputed that unconfirmed drug test
results cannot be used as a basis for disqualification
pursuant to La. R.S. 23:1081. It would be illogical to
prohibit the unconfirmed drug test to be used to deny a
claimant benefits under §1081, yet allow the same
unconfirmed drug test to be used as proof of fraud to ban a
claimant's benefits under §1208. The unconfirmed
test results are equally unreliable in both circumstances.
See Young v. Supplier Servs., LLC, 13-670 (La.App. 3
Cir. 4/2/14), 141 So.3d 288, 291-92. Thus, we find the OWC
judge correctly granted claimant's motion in limine.
therefore reverse the ruling of the court of appeal and
reinstate the ruling of the OWC judge.
 La. R.S. 23:1081(1)(b) provides:
"(1) No compensation shall be allowed for an injury