Safety and OSHA News

Injured at work, positive test for pot: Does he get workers’ comp?

Is testing positive for pot enough to disqualify an injured employee from receiving workers’ comp benefits?

Vincent Hogg worked at the Oklahoma County Juvenile Detention Center. He suffered an injury to his right shoulder and neck while subduing an unruly, combative juvenile.

The Worker’s Compensation Court (WCC) found Hogg sustained an injury at work and reported it in a timely fashion, four days later. So far, so good on the path to receive workers’ comp benefits.

Hogg was given a post-accident drug screen on the day he reported the injury. He also had a follow-up screening the next day. Both drug tests were positive for marijuana.

Hogg didn’t dispute the test results, but he denied smoking pot. He said he had been around others who were smoking marijuana.

The WCC found there was no evidence presented to show Hogg was high on the day he was injured, nor was there any evidence to show the marijuana in his system was the “major cause” of his injury.

But the WCC denied his workers’ comp benefits anyway. The reason: A newly created Oklahoma workers’ comp law.

Just what does new law say?

The comp judge’s decision was based on the fourth sentence in a paragraph of the revised workers’ comp law:

“For purposes of workers’ compensation, no employee who tests positive for the presence of … alcohol, illegal drugs, or illegally used chemicals, or refuses to take a drug or alcohol test required by the employer, shall be eligible for such compensation.”

Hogg appealed the WCC ruling, arguing the sentence in the new law shouldn’t be read in isolation.

In reviewing the case, the Supreme Court of Oklahoma noted that the first two sentences of the same paragraph in the comp law say:

“The following shall not constitute a compensable injury under the Workers’ Compensation Code: an injury which occurs when an employee’s use of illegal drugs or chemicals or alcohol is the major cause of the injury or accident; the employee shall prove by a preponderance of the evidence that the use of drugs, chemicals or alcohol was not the major cause of the injury or accident.”

The Supreme Court noted that the trial court found there was no evidence presented to show that Hogg was high on the day of his injury, nor was there any evidence to show that marijuana in his system was the major cause of the injury.

For that reason, the Oklahoma Supreme Court reversed the lower court’s ruling and remanded the case back to the WCC for further hearings. In other words, Hogg is now eligible for workers’ comp.

What do you think of the court’s decision? Let us know in the comments below.

(Hogg v. Oklahoma County Juvenile Bureau, Supreme Court of OK, No. 110890, 12/11/12)

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  • Ken

    When looking at drug test results, we have to take a look at the quantitative measurements of the suspect substance. Drug testing professionals can tell from that amount if it was from casual contact with someone else smoking or if fact the individual is fibbing about their individual usage.

    With two tests a day apart, I think the court should be paying more attention to those quantitative results. If the company or school has a drug free policy, I think that that should have p residence and the judgement should be based on that fact. Zero tolerance should be zero tolerance

  • SystemSucks

    I doesn’t matter. Just like unemployment. I walked into hearing with photos of a security guard sleeping on post and he got unemployment. I don’t even care anymore. Just raise the rates to account for having to support a bunch of blood sucking scumbags. You don’t test positive from second hand smoke and if you did, you were in closet with Cheech and Chong and you were still high.

  • hankroberts

    Poorly written law, with loopholes built in. In my state, if the employer has a clearly written drug policy and can demonstrate that employees are trained on the policy, then any employee testing positive or refusing to test is prohibited from drawing ANY compensation. The only burden is on the employer to demonstrate a clear, properly communicated policy. If you want to draw compensation, don’t do drugs.

  • anon

    Pot metabolites in an employees urine has ZERO correlation to them being impaired on the job. He could have smoked on friday night a week ago and fail a urine test. Nice try but NO CIGAR.

  • Jill

    I think the court got it right, because they used common sense. He was injured by a unruly, combative juvenile and the fact that a person has marijuana in his blood stream does not mean that they are high or affected by the drug at any particular point in time.

  • Los Gzalez

    Most employer’s (like my own) frown upon drug use along with some of your’s. With that being said a strong policy with no loopholes and proper verbage should be written so it can not be misconstrued and reneged on by any court rulings….. Even if the injury did not result from frequent or subsequent drug use. Once a user always a user….. You have to instill a culture change and tell them that drugs are bad. we used to have all sorts of problems with people using their spouses pain medication instead of going to the doctor to get their own…..

    • Gonja Dave

      Los Gzalez does your statement “once a user always a user” include alcohol? It has killed more people and ruined more lives than pot ever has! Pot has medical uses and noone has ever died from an overdose. Personally I would rather work next to a person working with explosives that got stoned the night before than one that was totally smashed on whiskey. And to System sucks just because the metabolites are in your system for 30 days does not mean that you are high.

    • Ronda Witt

      wow! the university I work for could care less if people come to work high, and believe me they do. even on co-worker buys pot from a student. crappy huh? Culture change hummmmmm not so sure about that one. Once a user always a users….TRUE!!! So the university may as well just fire them.

  • joe-2

    Of course the Supreme Court got it righ. The judgement was based on terms written in the law that states that proof be ascertained that Drugs/alcohol is the major cause of the injury or accident. “Re-write the law so there will be no question.” For instance, if drugs/alcohol are in your system at the time of injury/accident, whether attribituable or not to the injury/accident, no compensation will be given. (That’s simple, ain’t it?)

  • bess

    Why should employers even bother with a drug policy/testing if in the end the employee who tested positive is going to be AWARDED workers compensation.
    B. Cochran

    • Ronda Witt

      Hey, in the first place where I work employers let employees perform duties while high. Then when they come down off their high they want to bum money to buy food because they are hungry…one employee told management about having no money to buy food…..well DUH !!! tis because the paycheck is being spent to buy pot. One worker smokes before coming to work, I have smelt pot on one individual, and know that any one of the three employees I work with has a blunt on them, but the sad part……the university does not care…or at least the lower management-who knows what is going on.

  • jafo

    I can see where the drugs were not the cause of the injury. If he hadn’t had the altercation, he would not have sustained the injury he was claiming compensation for. So, what would constitute drugs as being the major cause of any injury? And, how could you prove that? So what is the purpose of drug testing? It has never been a factor in denying any of our cases either. Our drug policy keeps them from coming back to work, but also does not always keep them from applying for and receiving unemployment.

  • Ronda Witt

    look, where I work there are co-workers that come to work high all the time, and management has not done anything about it…and it has been reported, so my guess is that if they get hurt and they have marijuana in their system, they will get WC too. The university could care less I suppose.

  • Jed147

    No worker with illegal drugs or alcohol in their systems at the time of accident should receive compensation. Impairment by drugs and alcohol are known to effect how people perform. If they test positive, then is should be up to the employee to prove their intoxication was not a major contributor to the accident.

  • tiffy yammagucci

    He shouldn’t be somking weed period !!!!!!!!!!!!!!! Jobs should have zero tolerance for a controlled substance