Did drug use contribute to cause of worker's injury?

Did drug use contribute to cause of worker’s injury?

August 30, 2010 by Fred Hosier

Posted in: Alcohol/drugs, construction safety, Injuries, new court decision, Special Report, What do you think?

judgment

A worker uses questionable judgment while using heavy equipment. He’s seriously injured, and a test shows he used illegal drugs. The employee applies for workers’ comp. Does he get benefits?

Here’s what happened:

Michael Wiehe was an employee of Kissick Construction Co. in Kansas. The company had been hired as part of a highway-widening project.

Wiehe was operating a roller which leveled and compacted dirt before asphalt was laid on top. He attempted to break apart a large pile of dirt when the roller tipped over. Wiehe was thrown from the machine. The roller had a seat belt, but Wiehe wasn’t wearing it.

He suffered numerous injuries, including severe ones to his pelvis.

A drug test was performed on Wiehe at the hospital. He had a level of marijuana which was more than four times the amount needed to establish a conclusive presumption of impairment under Kansas law.

Wiehe admitted that he had used both methamphetamine and marijuana the day before he was injured. However, he said he was clearheaded on the day of the incident.

The Workers’ Compensation Board awarded benefits to Wiehe. It said the impairment exception didn’t apply in this case because there wasn’t enough evidence to show that Wiehe had behaved erratically or unusually before the incident. His employer appealed.

To show that Wiehe was impaired, a company foreman testified that he’d noticed Wiehe acting “a little goofy” before the incident, bobbing and weaving his head.

An experienced operating engineer also testified that Wiehe’s attempt to flatten a mound of dirt that was too large showed an extreme lack of judgment.

A toxicologist told the court that a person who is impaired by marijuana would function normally until something unexpected is placed in his or her path. The toxicologist said Wiehe might have carried out his job just fine that day if the large lump of dirt hadn’t been there.

The appeals court overturned the decision of the Workers’ Compensation Board. Wiehe would not get workers’ comp benefits. It said the company had proven that his impairment caused him to operate the roller in a manner that demonstrated extremely poor judgment.

What do you think about the ruling? Let us know in the Comments section below.

Wiehe v. Kissick Construction Co., Court of Appeals of Kansas, No. 102,669, 5/6/10.

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Tags: heavy equipment, impaired, marijuana, workers' compensation

Steven Smith

I could go along with the WC determination IF AND ONLY IF the “drug tests” actually test for the presence of DRUGS, which they DO NOT. The actual “drugs” in his system would be gone after a few hours, leaving only the metabolytes that were actually tested for. Metabolytes in the system have no correlation to actual impairment. “Acting a little goofy” on the job just doesn’t cut it as evidence. The fact that the claimant used drugs “the day before” should have no bearing on the case, as the effects from his cannabis or meth use would be gone by the next day.
PO’d Safety Guy

Paul Rotkis – The dirt pile comment was tongue-in-cheek…I think. And your example of the gun company getting sued. Isn’t that what people do any more – blame someone else? It all seemed to start with that woman who put the hot cup of McD coffee between her legs when she was driving and received burns when it spilled. There is this thing that been floating on the web called the Stella Awards – named after that spilled coffee lady – and they list incidents where the courts reward people for their own stupidity. Yeah, the dirt pile comment was tongue-in-cheek, but don’t rule out the possibility of it happening.
http://mmjrevu.com mmj reviews

Medical cannabis is in fact quite a good treatment for lots of folks, no matter what some folks say. I know family that have been aided with medical cannabis.
Paul Rotkis

The comp board has to be absolutley blind IMHO. Illegal drug use=automatic DECLINE; next.

Why on earth should the person that left/made the pile of dirt be the kick dog? Not that persons fault. Wiehe was the genius who saw the dirt and should know the operationl limitations of his equipment he is required to operate.

Example. People sue gun companies cause some lunatic kills a person with a gun the company made…Hogwash! It’s the person that commited the crime and pulled the trigger, NOT the gun company that made the gun!
PO’d Safety Guy

The comp board awarded benefits because they believed they were acting within the rule of law, apparently with the information they had available to them. It was only on appeal that the witnesses testified, thereby giving the appeals court reason to toss the comp board’s decision.
Maybe Wiehe should go after whoever left that mound of dirt there that was too big for his roller to flatten.
SFTYCAT

Matthew is right on with his comment. Oklahoma, I think, is the most claiment friendly state in the U.S. Funny how you don’t see Texas highways littered with billboard ads to attract the attention of someone with a work related “Boo-boo”. In Oklahoma if someone gets injured while using illegal drugs, it’s still the employers fault because somehow we failed to protect the employee. We also must be careful about fitness for duty determinations of a worker, those can wind up in a defamation of character lawsuit or settelment. In Oklahoma the employer ALWAYS looses. GO TEXAS!!
Mike

On drugs or not shouldn’t even be a question/issue. Why would WC pay when an employee makes a bad judgement on the job and causes an incident/injury? The pile was too large to use the roller on so the claim should be denied! Period! He wasn’t wearing a seat belt, also bad judgement. I wonder if common sense will ever prevail!
RandiG

Kevin, not just in the workplace — we should all be held responsible and accountable for our actions wherever and whenever they may occur.

I have to agree with those who say WC should never have been awarded in the first place — the appeals court definitely got this one right.
D F

The supervisor thought he was “Goofy” OMG that is enought right there to damn the company and the supervisor to all sorts of logal actions. For us as we are Psychiatric Facility part of our Safety Training is we are trained to monitor our staff for behavior changes.

Behavior changes can endanger all suppose the roller had squashed someone when he lost control or suppose there had been a death? “A little goofy” would trigger me to talk to the worker and see if I thought there was anything unusual and after the accident positive drug tests when the person is driving something that dangerous. Mr. Weihe was lucky he lived through that and was luckier no one else was hurt. That supervisor could be considered negligent by not checking out a staff member that was displaying odd behavior. The company was lucky also on one either another employee or of the public was injured.

Stories like this give me the horrors………Sop much could have gone wrong…And Life… Human life is so valuable each person is like an irreplaceable work of art and that needs to be honored……….there was on other like that person or any person and there will never be another.

That company needs to review its safety management program from the top down.

And yes the court was right in reversing Mr. Weihe’s benefits as he was impaired.
Bill

I agree with the last post. (Brent)
I’m not sure exactly how the Kansas law applies, but the article mentions “He had a level of marijuana which was more than four times the amount needed to establish a conclusive presumption of impairment under Kansas law.” I have always understood that lab testing would detect the presence of marajuana in a persons bloodstream via urine analysis, for up to 30 days prior to the date of the test (depending upon an individuals metabolism, fat content etc…). I have also understood that the levels can also be determined and I believe measured in nanograms or something similar to that. The question is, if they have the ability to determine the levels or quantities, shoud’nt they also have the ability to determine if the person is actually under the influence at the time he or she is “on the clock” I don’t necessarilly condone the use of drugs (especially the hard drugs such as Meth or cocaine, heroine, etc..but I do believe in “INDIVIDUAL FREEDOM” which is something that is being stolen from the individual citizen one piece at a time. Next thing you know, you won’t be allowed to eat oatmeal on Tuesdays for fear of too many people dephacating due to the high level of fiber in one’s diet, causing an abnormal increase in the amount of toilets flushing, which could lead to an overload of the City’s waste water treatment plant and put strains on the municipal water supply. Especially during periods of drought. Sorry for the RANT, but this is just how I feel……
Jason

Positive on drug test=Negative on benefits. End of story. No rehabilitation, no somebody else shoulda done this and that, no nothing. Your fired…after you pay for what you’ve torn up. People need to take responsibility for their own actions…period.
John S

Good stuff. Long overdue. Now he should be fired and the local poice arrest him. He should then be sued for willful misconduct by his ex-employer and charges files to comp them for their damaged equipment.
It is illegal for a reason folks.
Scott

I agree with Brent. I would much rather work in a hazardous job with someone that used marajuna the night before than someone that got smashed on booze. I feel that there should be a test for the level of imparement. If booze could be detected for 30 days would that be reason to exclude you from receiving Workers Compensation? If he was acting goofey maybe the sun or heat played a roll in his actions. Did they check for heat exhaustion or sun stroke????
Debbie

This is just getting goofy, when is the person that caused something going to be responsible for his or her actions, we live in a world that always wants to blaim someone else. Bottom line goofy employee didn’t get anything and it was the correct decision. People should wake up and see what is happening to employers, the hoops they must go through to employ people, and you are right you can’t get rid of someone you suspect on drugs unless you offer him drug rehabilitation. And you wonder why jobs are not being created. The risks that go with owning a business are growing by the day now. We all pay for lawsuits by paying higher costs for everything. It just never ends! I would never tell someone that can’t do something, but if they are on drugs, I don’t need them working for me!
http://www.thummel.com Dave Zerbe

The urine test done at the hospital after the test is prima facia evidence and had he been driving a vehicle and was stopped he would’ve gone to jail. So the testing and laboratory regimins have been in place for years not only from the Federal Governement but also from Law Enforcement. Having workers test positive for any illegal substance should be grounds not only for termination but also bar them from any benefits like work comp. No workplace needs to have any impaired workers at any time.
Sad State

First – once again I am stunned, a court that got it correct.
Second – I have to agree with Chuck, if an employee was tested for drugs or fired every time they “acted a little goofy” there would be no employee’s left, as long as the goofy is not a safety issue people need to be given some latitude, if the goofy is or causes unsafe conditions then it needs to be addressed.
Brent

I personally think that medical profession needs to come up with a definable way of testing to see if marijuana is active in a persons system at the time of an accident and if it would have contributed to the accident. Impairment can be under any kind of medication or drug illegal or over the counter, look at cold medicines, headache relief, ect. If you are under the influenence of achohol there is a blood test or breath alizer test. There is no concrete way of testing for impairment of individuals except to say they have used it in the last 30 days.
http://www.thummel.com Dave Zerbe

I believe the Appeals Court saw the light and realized that being impaired is not on the employer’s dime. Not with standing the co-workers testimony, the fact that he tested positives for illegal substances should be all it took to say no to a work comp claim in my book.
Chris W

I agree with Mel about the supervisor. I hope the company appropriately disciplined the supervisor, or at least required additional substance abuse training so he/she will be able to better recognize the signs of abuse and be able to respond appropriately in those situations instead of waiting for an accident to occur. By the way, the article stated, “A toxicologist told the court that a person who is impaired by marijuana would function normally until something unexpected is placed in his or her path. The toxicologist said Wiehe might have carried out his job just fine that day if the large lump of dirt hadn’t been there.” So they did not overturn the ruling based solely on what the supervisor said about the employee acting a little goofy. They had an expert testify about the effects of marijuana and how a person functioned following use. I’m sure this testimony carried much more weight than what the supervisor said. However, when paired together, it just made for a stronger case. Maybe the company dealt with the supervisor as stated above, as failure to do so may result in future accidents.
Stu

I just recently terminated and employee that was most certainly a drug abuser. With petty lawsuits being filed by disgruntled ex employees, I had to terminate on poor performance issues. Had I sent her for drug testing the concern was that if I knew she had a problem then I should make arrangements for rehabilitation. It is ridiculous the hoops you have to jump through to terminate a worthless and dangerous employee.
Mel

Putting the whole drug issue to the side, I do not want anyone acting “goofy” while operating heavy machinery on my watch. It is a safety issue that should have been addressed by the foreman.
Debbie

I believe that if it is proven an employee is on drugs or alcohol when something happens, he forfeits any rights to compensation benefits, it is ashame that it went as far as it did and had to be appealed. Employer should should be protected by this, why should the employer pay for this employees mistake, what message does this give to other employees? I am glad it turned out ok for the Employer. Maybe acting goofy was a trait for this person, and may not have seemed to out of line for him, now knowing his history with drugs.
Matthew

Sounds like Kansas WC Board needs to re-evaluate its rules. Thank goodness Texas has it right – a positive is automatic exclusion from benefits (except for emergency care).
Chuck C

Mel– acting a little goofy wasn’t enough evidence to warrent a probable cause drug/alcohol test.
Chuck C

Rulings on this will vary from state to state. Some states put the burden of proof on the employer to prove that the injury occurred due to impairment. Other states put the burden of proof on the injured worker to prove that the injury was not caused by his impairment. Personally I think that the levels of detected drugs or alcohol should be lowered and in every state it the burden of proof should be on the injured worker to prove that the drugs or alcohol did not contribute to the accident.
Paul Rotkis

Right on appeals court!!!!!! Ya know, how on God’s green earth would the workman’s comp board even have the slightest inclination to rule this any other way other than “CLAIM DENIED IDIOT!”

These WC claims scenarios that we read about here have limited info as we all know…but some of the claims awared are so unbelieveble!

It’s no wonder why so many freeloading-so-called-hurt-workers file a WC claim…especially when they have a bunch of bafoons on the boards approving them!!!

And I agree with Mel! Why didnt the supervisor act upon his unusual behavor?

Not fire the dumb @#$ for not wearing his seatbelt and being stoned on the job! Plus, can the supervisor for not doing his job…
Rhonda

COME ON…JUST BECAUSE SOMEONE SAID THAT YOU WERE ACTING A LITTLE GOOFY…DOES THAT REALLY JUSTIFY OVERTURNING THE APPEAL AND PROVE ANYTHING. WE LIVE IN AMERICA PEOPLE. IT SCARES THE HELL OUT OF ME TO THINK THAT I COULD BE PROVEN GUILTY OR DENIED SOMETHING BECAUSE OF HERESAY. I DO NOT SUPPORT THE METH PART BUT THERE’S SOMETHING A LITTLE SCREWED UP ABOUT THIS SITUATION!!
Kevin

Thank goodness for the appeals ruling. I am a firm believer in holding employees more responsible and accountable for their personal actions in the workplace. We are dealing with adults and its about time we treated them that way instead of encouraging unsafe acts and behaviors by holding companies responsible in cases where appropriate safety training has been conducted.
Mel

A company foreman testified that he’d noticed Wiehe acting “a little goofy” before the incident, bobbing and weaving his head. And allowed him to continue working? that is a question I would be asking.
Xazalea

Wonderful!! The appeals ruling was right on. It’s amazing this man was not criminally prosecuted after admitting he was using illegal drugs.
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