Safety and OSHA News

Injured worker tested positive for drugs, still gets comp

A worker suffered a serious workplace injury and was taken to the hospital for treatment. While there, he was drug tested. The test was positive for methadone, a drug used to treat narcotic withdrawal and dependence.

Cause of the accident: a roof-bolting machine fell on the employee’s leg.

His employer sought to deny workers’ comp benefits based on the positive drug test.

On top of the positive test, the employee also admitted he had obtained the prescription for methadone under false pretenses.

The state’s Workers’ Compensation Commission ruled the employee should receive benefits because the company didn’t prove that the drug use caused the accident.

State law states “no compensation shall be awarded to the employee … for an injury … caused by … the employee’s use of a non-prescribed controlled substance.”

The key phrase was “caused by.” The Commission found that the company didn’t show the drug use caused the accident. The decision held up when the company appealed.

Key: If an employee’s drug use didn’t cause a workplace accident and injury, workers’ comp benefits can’t be denied.

Cite: Dominion Coal Corp. v. Bowman, Court of Appeals of VA, No. 0628-08-3, 2/10/09.

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  • Lori

    So in this case what would it take to prove that being under the influence didn’t hinder his judgement?

  • Barry

    We do not have enough information. However, if one can discern between exactly where this employee would have been or what he would have done or not done, with or without the drug, then you could determine if the drug played a part. Therefore, without direct and conclusive evidence, it would seem improbable to ever “prove” drug use CAUSED an accident.

  • Paul

    Was the employee terminated? did the company have a drug free work place? and if he was terminated what effect did it have on his comp case?

  • LEU

    Sounds like the law needs to be changed a bit to prevent that from happening again.

  • http://AOL Mark

    I agree with Lori

  • george

    We wanted to institute a random drug test policy in our company. I was advised that it could only be done in one of two ways, first test every employee, second have a doctor not affiliated with the company pull a name out of a hat. As a result the Executives decided that testing new hires was the way we were going to do it. There are no guarantees with anything, but how do you prove drugs were the cause of an accident?

  • Kim

    Why is there a different standard for post-accident drug tests than there is for driving while intoxicated? Do the police need to prove that alcohol CAUSED the accident? Working under the influence of illegal drugs should disqualify the employee for benefits.

  • LEU

    Geo – Only if you have a policy that stipulates testing will be done after an accident. In our state we have a drug free program that requires 4 types of testing (pre-employment, reasonable suspicion, post-accident, and random) and provides a 7.5% reduction of WC premium costs if you comply.

  • KLay Northrup

    Another example of legislation that is hurting our economic growth. Many employees that I talk to do not seem to understand that companies operate with very large overhead, especially in manufacturing. We spend over $10,000 yearly just on hearing protection! I wonder if that employer hired an attorney?

  • LEU

    Kim – it’s just the way the law is written in the various states, just as the DUI limits are different. When the machine fell onto his leg, it wasn’t his fault, therefore drugs didn’t cause the accident. I would still fire him for being under the influence while at work.
    If I were in VA, I’d work to get the state law changed to prevent this from happening again.

  • Bill

    Kim, The police do need to prove that alcohol caused an accident when someone involved in one is DWI. They cannot just use the DWI as an excuse. There is an investigation.

  • Kim

    It just seems like in the DUI/DWI situation the police have a prayer of proving that the alcohol caused the accident. I feel that as the employer there is no way I can PROVE that the illegal drugs caused the accident.

    I even had an employee’s (well, former employee’s) opiates test come back positive for heroin post-accident which has a 2-5 hour halflife according to the doctor, and work comp is still probably not going to deny the claim. If that isn’t a case of the drug causing the accident, I don’t know what would be. Very frustrating.

  • LEU

    Bill – that’s not entirely true. If you are driving under the influence – you are violating the law regardless – accident or not. If you are in an accident, it is PRESUMED that alcohol was the cause if you are driving under the influence. (At least in my state.)

  • nomi

    I think the question in this case was, if the employee had not been under the influence, would the machine still have fallen on his leg? Why did the machine fall? Did it fall because it wasn’t secured properly? Who was responsible for properly securing the machine? There is not enough info in the article to judge.

  • Stacey

    Had a situation very similar to this one several years ago…

    An employee cut his finger badly enough to require stitches while climbing on a conveyor belt (he had no reason to have been doing this). While at the ER, a drug test was done and the employee tested positive for cocaine.

    At the time of hire, all employees were informed that we were a drug free workplace, were given a copy of the drug testing policy (and were required to sign a receipt) and, at the ER, the employee was once again told that testing positive for a controlled substance or alcohol would lead to termination of employment and required to sign a statement acknowledging this.

    We ended up paying not only WC but unemployment for this employee because, according to the State, we did not provide enough “warning” to the employee that he could lose his job!

  • LEU

    Stacey – if your state was a drug free workplace state, (and yours was a drug-free company), you wouldn’t have to pay WC. We are and it has helped me considerably in the past. You also get a 7.5% discount on your WC premiums if you are a drug-free company.

  • Kim

    Stacey I can relate! We did manage not to pay unemployment on the grounds of carelessness & violating company policy. I attribute this to someone at the unemployment office being able to see all the drug-related evidence and the accident details and determining the employee’s actions did not merit unemployment compensation. So take heart, from time to time common sense can prevail!

  • S. Larison

    Oh Well, @ least we all know where his Workers Comp Money will be going.

  • http://safetynewsalert.com Ken Williams

    This one is very tough. Usually you have to show the employee was/was not doing his/her task in the “ordinary” manner. I have both won and lost on these cases. Generally, you can terminate without a problem, workman’s comp will be paid, but, you don’t have to pay unemployment. Again it will depend on the state. I lost one like this in Florida, so although California is very lax, so are others.
    Stay safe.

  • Deeda Kaye

    In the past if an employee was injured and tested positive for drugs, the workers comp claim was quickly denied, with possible ramifications for the drug use (i.e. rehab or loss of employment). However, things have changed. Just because a worker tests positive for a drug, it does not mean that AT THE TIME OF THE ACCIDENT the worker was impaired. It’s easy to determine if a person is under the influence of alcohol, but certain drugs can stay in your system for up to 30 days.

  • Dan P

    Your substance abuse policy should clarify that “because we cannot determine whether the drug use occurred while working or outside of work, it will be presumed that the employee was under the influence on working time.” The drug use cannot be taken into consideration for WC purposes however if the accident happens through no fault of the employee (hit by a bus, tree or machine falls on him, act of god, etc).