Safety and OSHA News

Injured worker tests positive for pot: Will he get workers’ comp?

A worker used an acetylene torch to cut off the top of a barrel which exploded, injuring him. When receiving medical treatment, the worker tested positive for pot. Now he wants workers’ comp. Will he get it?

Employee Greg Prock was asked by his supervisor at Bull Shoals Landing to cut off the tops of two barrels. Prock and another employee used an acetylene torch and cut the top off of the first barrel.

When they began to cut the top off the second barrel using the same torch, there was an explosion. Both employees suffered injuries. Prock had severe burns to his legs, hands, face and arms. He sought workers’ comp benefits.

After testing positive for pot, Prock was denied benefits.

In Arkansas, the presence of drugs in his system shifted the burden to Prock to show why he should get workers’ comp. Prock had to prove “by a preponderance of the evidence” that the pot didn’t substantially cause the accident and his injury.

The ALJ found Prock’s injury was the result of his attempt to accomplish his assigned work task in a quick and convenient manner and not the result of impaired judgment caused by the use of marijuana.

Bull Shoals appealed the decision to the full Workers’ Compensation Commission which noted testimony by company management that Prock had been directed to use an air chisel to open barrels. In addition, the barrels had warning labels to not use a torch to open them.

Prock said he’d always used a torch to open barrels at work. But the Commission said that only showed Prock’s “long-term marijuana use” contributed to “his lack of personal safety.” The Commission reversed the ALJ’s decision, saying Prock didn’t prove his injuries weren’t the result of his pot use.

Prock took his case to an Arkansas appeals court which upheld the Commission’s decision. Recently the Arkansas Supreme Court heard the case.

Testimony disregarded?

In his appeal to the state’s highest court, Prock pointed to evidence that was presented that he’d taken the same action (cutting open a barrel with an acetylene torch) several times in the past at work without incident.

He also argued there was independent testimony from another employee that cutting open barrels with a torch was common practice at Bull Shoals. The other employee said he’d seen Prock and other workers do this many times and that it was an accepted practice.

The company disputed that, saying it told Prock to use an air chisel to open barrels. However, the court noted that, given the warning labels on the barrels, using an air chisel wouldn’t be considered safe either.

Employees also testified that they had never seen Prock high at work. Bull Shoals suggested Prock had taken time to smoke pot on the day he was injured before he was given the task to cut open the two barrels.

But the court wondered if that were the case, and they suspected Prock had smoke pot that morning, why did they allow him to remain at work and assign him a safety-sensitive task?

“The above evidence can by summarized by concluding that no one saw Prock intoxicated on the day of the accident, no one saw him ingest anything, no one had seen him impaired in any way at work on prior occasions,” the court wrote, “and, most importantly, that he performed a task that he had been asked to do in the same manner in which he had habitually performed it in the past.

“We conclude that the Commission arbitrarily disregarded any testimony that supported Prock’s claim in addition to twisting, or leaving out of its opinion altogether, certain testimony that supported Prock.

“We conclude … the accident and the injuries were the direct result of Prock’s practice of opening barrels in an unsafe manner with an acetylene torch.”

The court granted Prock workers’ comp benefits.

Lesson: If you allow workers to engage in unsafe work practices and then an employee is injured, you can’t necessarily use a positive drug test to keep from paying workers’ comp.

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

(Prock v. Bull Shoals Boat Landing, Supreme Court of AR, No. CV-12-73, 2/27/14)

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Comments

  1. No!

  2. heidibrightly says:

    Just goes to show the rule generally favors the injured worker. With the new pot regulations-who knows what is in store for the workforce. What you do off the job definately affects how you perform your job. When things go south-of course, it is the employers fault.

  3. I was going to use this story at our monthly safety meeting…right until I read the ruling. What message does this send?

  4. fredhosier says:

    Editor’s reply to ehcncso: Unfortunately, this story doesn’t provide a good message to employees. However, it does provide a good message to supervisors and even C-level managers. This company allowed a questionable practice to take place on a regular basis: using torches to open barrels. Had the company banned this practice, this case might have come out differently because the employee has to refute that drug use was the primary cause of the accident/injury. The court said … the cause was the company allowing this practice to continue.
    So, I suggest this can be used with a safety meeting for supervisors with this lesson: Next time you think it’s a good idea to take a shortcut to speed up some work, think again. The injured worker can test positive for drug use, but if you don’t make safety a priority for all employees, you can still lose the case.

  5. Companies/organizations/people will use whatever they can to protect themselves and save money. Plain and simple. If they shift the blame to the employee’s habits then they will save money. The only dirt they had on the employee was ‘testing positive’ for marijuana use. They tried to use it to save themselves from paying workers compensation. Perhaps in the future the company will have a written procedure for opening a barrel, and in this procedure the company will explicitly state torches are not to be used. If someone then uses a torch and injures themselves then the employee disregarded procedure. Now they can show the employee disregarded written procedures.

    Companies will always look for excuses to blame the employee. Pot is just another excuse. If there was a proper safety culture and written procedures then the employee would not have been injured and the company would not have to pay worker’s compensation.

  6. I agree with Fred that this is a good learning tool for supervisors. But it’s interesting to me that it shows the difference of how workers comp is handled between the states and courts. It’s very subjective to the persons hearing the case when it really should be more black and white. I’m talking about the article y’all posted the other day about the nurse who injured her back at work, then was fired afterwards for failing to chart correctly about her patient. She was denied benefits because she was terminated for cause, which was interpreted as she voluntarily abandoned her job. In this case, a failure of a post incident drug test, would be grounds for termination, at least in my company, yet he gets his benefits.

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