Hometown Transportation, LLC v. Chad Lancaster

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
HOMETOWN TRANSPORTATION, LLC,
March 25, 2024
Employer Below, Petitioner
C. CASEY FORBES, CLERK
INTERMEDIATE COURT OF APPEALS
vs.) No. 23-ICA-424 (JCN: 2023019975) OF WEST VIRGINIA

CHAD LANCASTER,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner Hometown Transportation, LLC, appeals the September 5, 2023, order of
the Workers’ Compensation Board of Review (“Board”). Respondent Chad Lancaster
timely filed a response. 1 Hometown Transportation did not file a reply. The issue on appeal
is whether the Board erred in reversing the claim administrator’s order, which had denied
the claim, and holding the claim compensable.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds that good cause has been shown to vacate and remand the
case for the taking of new, additional, or further evidence for a full and complete
development of the facts of the case as contemplated by West Virginia Code § 23-5-12a(d)
(2022). For the reasons set forth below, the Board’s decision is vacated and remanded.

On April 24, 2023, Mr. Lancaster, a driver for Hometown Transportation, was
driving to pick up a client to transport to a VA Hospital when he was involved in a car
accident. According to the State of West Virginia Uniform Traffic Crash Report, traffic on
I-68 was stopped due to a wide load tractor trailer and its pilot car being stationary. Another
tractor trailer pulled into both lanes of I-68 to stop oncoming traffic. Mr. Lancaster was
approaching the stopped vehicles and attempted to brake but was unable to avoid collision
and struck the rear of the tractor trailer that was attempting to stop traffic. Mr. Lancaster
sustained serious injuries and could not give a statement to the police at that time. He was
transported via helicopter to Ruby Hospital and was diagnosed with a left wrist fracture,
right calcaneal fracture, foot fracture, ankle fracture, rib fracture, and face lacerations.

1
Hometown Transportation is represented by Steven K. Wellman, Esq., and James
W. Heslep, Esq. Mr. Lancaster is represented by Christopher J. Wallace, Esq.
1
Mr. Lancaster’s medical records indicated that he had been previously diagnosed
with polysubstance abuse. In fact, his urinalysis, which was performed sometime following
the vehicle accident, was positive for amphetamines, benzodiazepines, cannabinoids, and
fentanyl. Laboratory confirmation also showed that Mr. Lancaster was positive for
methamphetamine. It does not appear from the record that a blood test was performed. Mr.
Lancaster completed an Employees’ and Physicians’ Report of Occupational Injury on
April 27, 2023, indicating that he injured his left leg, ankle, and foot; his right wrist; and
ribs on his right side. The Physicians’ section was completed by A.J. Monseau, M.D., who
indicated Mr. Lancaster sustained injuries to the head, chest, right ankle, and left wrist as
a result of an occupational injury.

On May 22, 2023, Syam Stoll, M.D., authored a Physician Review report on the
issue of whether the drugs found on Mr. Lancaster’s urine drug screen would have affected
his job performance due to mental and physical impairment and resulted in his injuries. Dr.
Stoll concluded that the drugs in Mr. Lancaster’s system would have directly impacted his
mental and situational awareness, as well as his reaction time, and resulted in his injuries.
Dr. Stoll acknowledged that the benzodiazepines and the fentanyl could have been
administered by EMS during transport for pain control but noted that the marijuana
metabolite and methamphetamine would have been entirely for recreational use. Indeed,
Dr. Stoll noted, the medical records revealed that Mr. Lancaster had a history of cocaine
use disorder and that he was a recreational marijuana user. Dr. Stoll explained that Mr.
Lancaster’s methamphetamine levels were 14,000 ng/ml and that the test cut off was 250
ng/ml, and his marijuana metabolite levels were 130 ng/ml with a cut off of 5 ng/ml.
According to Dr. Stoll, methamphetamine can be detected in a person’s urine for up to
seventy-two hours after the last dose.

By order dated May 23, 2023, the claim administrator denied the claim, finding that
the “disability complained of was not due to an injury or disease received in the course of
and resulting from employment.” Mr. Lancaster protested the order to the Board.

On July 19, 2023, Michael J. Coyer, Ph.D., a forensic toxicologist, authored a report
in which he opined that there was no evidence that Mr. Lancaster was under the influence
of methamphetamine or marijuana at the time of the accident. Dr. Coyer found no
memorialized observations of impairment in the medical records or police reports. Dr.
Coyer further noted that a positive urine screen is only an indication that Mr. Lancaster
may have used or been exposed to these substances some time prior to the incident but did
not establish actual impairment. Dr. Coyer stated there was simply no way to determine
the amount of drugs used, the time of use, or the effects of use based solely on the urine
test results. Dr. Coyer cited a few medical articles and studies which he averred supported
his position.

As part of his protest to the Board, Mr. Lancaster also submitted a transcript of a
phone conversation between his counsel and the client Mr. Lancaster was on his way to

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pick up when the accident occurred. The client stated that he spoke to Mr. Lancaster on the
phone that day and that Mr. Lancaster stated he was on the way to pick up the client at that
time. The client stated the phone call lasted about two minutes and that Mr. Lancaster was
easy to understand, was not slurring his words, and did not seem to be impaired.

Mr. Lancaster also signed an affidavit in which he indicated that he was not under
the influence of any substance or alcohol at the time of the accident and simply could not
stop in time to avoid hitting the vehicles stopped on the interstate.

By order dated September 5, 2023, the Board reversed the claim administrator’s
order rejecting the claim and held the claim compensable for an unspecified fracture of the
right foot, rib fracture, other lower leg fracture, and nondisplaced fracture of the left wrist.
The Board found that it was uncontroverted that Mr. Lancaster was injured when he rear-
ended a vehicle while traveling to pick up a client. The Board acknowledged Hometown
Transportation’s argument that Mr. Lancaster was under the influence of illicit drugs at the
time of the accident but found that no blood test had been administered as set forth in West
Virginia Code § 23-4-2(a) (2023). The Board noted that only a urine test had been
administered following the accident.

The Board found that while Dr. Stoll opined that the drugs in Mr. Lancaster’s system
would have directly impacted his mental and situational awareness and his physical
reaction time, Dr. Coyer had stated that it was impossible to tell whether Mr. Lancaster
was actually impaired by the drugs at the time of the accident. The Board noted Dr. Coyer’s
statements that a positive urine screen was only an indication that Mr. Lancaster may have
used or been exposed to drugs at some time prior to the incident, that impairment was not
corroborated by medical or police reports, and that there was no way to determine the
effects the drugs may have had on Mr. Lancaster at the time of the accident. The Board
further noted the transcript of the phone call between Mr. Lancaster’s counsel and the
client, in which the client indicated that Mr. Lancaster did not seem impaired. Given this
evidence, the Board concluded that Mr. Lancaster established that he had suffered an injury
in the course of and resulting from his employment and that the “defense found in W. Va.
Code § 23-4-2(a) has not been met.”2 Hometown Transportation now appeals and filed an
accompanying motion for stay, which this Court granted by order dated November 9, 2023.

2
West Virginia Code § 23-4-2(a) (2023) provides as follows:

Notwithstanding anything contained in this chapter, no employee or
dependent of any employee is entitled to receive any sum under the
provisions of this chapter on account of any personal injury to or death to any
employee caused by a self-inflicted injury or the intoxication of the
employee. Upon the occurrence of an injury which the employee asserts, or

(continued . . .)
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Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:

The Intermediate Court of Appeals may affirm the order or decision of the
Workers’ Compensation Board of Review or remand the case for further
proceedings. It shall reverse, vacate, or modify the order or decision of the
Workers’ Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:
(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

Duff v. Kanawha Cnty. Comm’n, 247 W. Va. 550, 555, 882 S.E.2d 916, 921 (Ct. App.
2022).

On appeal, Hometown Transportation argues that this Court should remand the
matter for further consideration as it appears the West Virginia State Police has now filed
a criminal complaint charging Mr. Lancaster with driving under the influence, inflicting

which reasonably appears to have, occurred in the course of and resulting
from the employee’s employment, the employer may require the employee
to undergo a blood test for the purpose of determining the existence or
nonexistence of evidence of intoxication: Provided, That the employer must
have a reasonable and good faith objective suspicion of the employee’s
intoxication and may only test for the purpose of determining whether the
person is intoxicated. If any blood test for intoxication is given following an
accident, at the request of the employer or otherwise, and if any of the
following are true, the employee is deemed intoxicated and the intoxication
is the proximate cause of the injury:

....

(2) If there was, at the time of the blood test, evidence of either on or off the
job use of a nonprescribed controlled substance as defined in the West
Virginia Uniform Controlled Substances Act, West Virginia Code § 60A-2-
201, et seq., Schedules I, II, III, IV and V.
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serious bodily injury, and child neglect resulting in serious bodily injury. Hometown
Transportation claims that an amended police report is forthcoming but was unable to be
submitted within the timeframe before the Board and that, as such, remand is necessary for
a complete development of the facts.

Hometown Transportation also argues that the Board was clearly wrong, even
without having considered the new police report, in holding the claim compensable in light
of Mr. Lancaster’s intoxication. According to Hometown Transportation, Mr. Lancaster
had a documented history of substance abuse disorder and, on the day of the accident,
tested positive for multiple substances. Hometown Transportation argues that Mr.
Lancaster’s levels for these substances were significantly elevated, suggesting that his drug
use was chronic, very recent, or both. While Dr. Coyer opined that the evidence did not
establish Mr. Lancaster’s impairment at the time of the accident, Hometown Transportation
states there is no indication that he was aware of or gave any consideration to Mr.
Lancaster’s substance abuse history. Hometown Transportation further argues that, despite
Dr. Coyer’s claims that urinalysis testing is unreliable, urinalysis testing is used by both
State and Federal agencies for things such as preemployment screening, random screening,
and post-accident screenings. As such, Hometown Transportation contends that the Board
erred in considering only the lack of blood testing in determining whether the injury
occurred in the course of and resulting from Mr. Lancaster’s employment. Hometown
Transportation concludes that, in considering Mr. Lancaster’s history of substance abuse,
a lack of environmental or mechanical contributors, a positive urine screen, and the police
report and criminal complaint, the evidence demonstrates that the accident was caused by
Mr. Lancaster’s intoxication.

Upon review, we conclude that good cause exists to vacate the Board’s order and
remand this matter for the taking of additional evidence. Pursuant to West Virginia Code
§ 23-5-12a(d),

[i]nstead of affirming, reversing, or modifying the decision of the Workers’
Compensation Board of Review, the Intermediate Court of Appeals may,
upon motion of any party or upon its own motion, for good cause shown, to
be set forth in the order of the court, remand the case to the Board of Review
for the taking of such new, additional, or further evidence as in the opinion
of the court considers necessary for a full and complete development of the
facts of the case.

We emphasize that our decision should not be seen as somehow forecasting the
outcome of the case. However, we do want to remind the Board that West Virginia Code
§ 23-4-2(a) does not require a blood test in order to establish intoxication. Rather, it simply
provides that there is a presumption of intoxication and proximate cause when a blood test
with positive results for a controlled substance (Schedule I-V) is submitted into evidence.
An employer may still establish intoxication through other evidence. Although West

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Virginia Code § 23-4-2(a) requires a blood test, rather than a urine test, to establish a
presumption of intoxication, it is not meant to be read that a urine test holds no evidentiary
value.

Upon remand, we direct the Board to hold an evidentiary hearing for the taking of
“new, additional, or further evidence . . . necessary for a full and complete development of
the facts of the case.” W. Va. Code § 23-5-12a(d). In addition to considering any new or
additional evidence, we further instruct the Board to perform a more thorough analysis of
the urine test performed, including consideration of the methamphetamine levels in Mr.
Lancaster’s system at the time of the urinalysis, the half-life of methamphetamine, and the
time between the accident and the urinalysis test.

Accordingly, we vacate the Board’s order and remand this matter to the Board for
further evidentiary development.3 The Clerk of this Court is hereby directed to issue the
mandate contemporaneously herewith.

Vacated and Remanded.

ISSUED: March 25, 2024

CONCURRED IN BY:

Judge Charles O. Lorensen
Judge Daniel W. Greear

Chief Judge Thomas E. Scarr, not participating

3
Importantly, West Virginia Code § 23-5-12a(d) provides that, upon remand from
this Court,

the Board of Review shall proceed to take new, additional, or further
evidence in accordance with any instruction given by the court within 30
days after receipt of the order remanding the case. The Workers’
Compensation Board of Review shall give to the interested parties at least 10
days’ written notice of the supplemental hearing, unless the taking of
evidence is postponed by agreement of parties, or by the Board of Review
for good cause. After the completion of a supplemental hearing, the Workers’
Compensation Board of Review shall, within 60 days, render its decision
affirming, reversing, or modifying the former action of the Workers’
Compensation Board of Review. The decision shall be appealable to, and
proceeded with, by the Intermediate Court of Appeals in the same manner as
other appeals.
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