Safety and OSHA News

Was pot-user denied workers’ comp for fall from tree?

A worker who was part of a tree-trimming crew was injured when he fell out of a tree from a height of eight to ten feet. A urine test in the hospital showed pot use. He applied for workers’ comp benefits. Did his employer have enough evidence to deny comp because marijuana use was a cause of the fall?

Daniel Davidson worked for Boehm Landscaping Co. in Tennessee.

On the day of his fall, business owner Chris Boehm and a supervisor conducted a safety meeting with a five-man crew, including Davidson, before sending them to a location where they were going to clean up storm debris.

Boehm told the crew not to climb trees in the area because the necessary equipment for such work wouldn’t be available until the next day.

Another employee said Davidson smoked pot before reporting to the job site.

At about 10 a.m., Davidson began to scale a tree limb. The job foreman reminded Davidson of Boehm’s warning not to scale any trees that day. Despite the warning, Davidson continued until he fell from a height of eight to ten feet. One employee said it looked like Davidson “stepped into the air.”

Davidson applied for workers’ comp benefits for his injuries. The company denied benefits, arguing that the injury was the result of the employee’s intoxication and misconduct.

A trial court found that marijuana use was a cause of the fall and OK’d the denial of workers’ comp benefits. Davidson appealed to the Supreme Court of Tennessee.

Was employee impaired?

At trial, Davidson denied that he smoked pot on the morning of his fall, but he did admit using marijuana regularly.

A urine sample taken in the hospital tested positive for THC, the active chemical in marijuana, at more than 50 times the threshold for a positive result.

A doctor with the company that administered the drug test described Davidson’s THC level as “one of the more elevated” he had seen.

Another doctor testified as an expert on the effect of marijuana use. He described Davidson as a chronic pot user and said because of the “very high” test results, in his opinion, the worker was impaired at the time of his injury.

In his appeal, Davidson argued that the proof was insufficient to establish that he was intoxicated or that the intoxication was the direct cause of his injury.

Tennessee law says an employee who is injured on the job as a result of intoxication or illegal drug use isn’t entitled to workers’ comp.

When an employer has implemented a drug-free workplace, a positive drug test leads to a presumption that drug use was the cause of an injury.

However, the company didn’t have a drug-free workplace policy. When that’s the case, the employer bears the burden of establishing intoxication as the cause of an injury to avoid paying benefits.

The state’s supreme court ruled that since there was no other explanation for Davidson’s fall, it followed that his intoxication, as explained by the doctor, was a direct cause of the injury.

For that reason, the state’s highest court ruled that Davidson would not receive workers’ comp benefits for his injury.

An interesting side note to this case: The company had also argued that another reason why Davidson should not receive comp was because of willful misconduct. Employees were warned not to climb the trees without the proper equipment that morning, and Davidson was warned again when he climbed the tree.

However, the court said Davidson’s pot use prevented him from making a reasonable decision to disregard instructions, so the willful misconduct argument didn’t hold up.

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

See other cases about employee marijuana use here, here and here.

(Davidson v. Business Personnel Solutions, Supreme Court of TN, No. 27999, 10/24/2011)

 

Print Friendly

Subscribe Today

Get the latest and greatest safety news and insights delivered to your inbox.

Comments

  1. When someone who has employment that has great risk of injury and indulges in an illegal substance that makes you high so that you cannot use common sense that should be willful misconduct because they willingly indulged. Our court system, for some strange reason, does not hold employees as responsible as they should be. Hopefully, one of these days employees should be considered adults, instead of children needing the protection of mom (our government/judicial system) and hold them accountable for their actions. The fair judgment in this case should be that the employee would have to reimburse the employer and insurance company for all costs related to the lawsuit. Maybe that would wake the employees up to the fact they are adults and are accountable for their actions.

  2. The courts appear to have gotten this one right.

  3. Let me get this straight! If you are an illegal alien and get hurt your intitled to a million dollar settelment and are sent home to live like a king. If you smoke pot, wether you are high or not, and you test positive you dont get workers comp!!! Sounds fair to me!!!! NOT!!!!! The legal system, workers comp system, welfare system and political systems are all screwed up in this country. Illegal is illegal and wether you are in this country illegally or wether you are smoking pot both are illegal and should garner the same decision. This however is not the case.

  4. Plain and simple…DO NOT climb the trees! No benefits!!! The article says that the willful misconduct doesn’t hold up because he was using illegal drugs? What difference does it make if he was “high” or not? He did what his supervisor specifically told him not to do! These people need to be held accountable for their own actions. Either do what you are directed to do while NOT stoned or face the consequences for your actions if you impair yourself and become too stupid to follow simple instructions.

  5. Great call by the courts. The worker was intoxicated and not following his supervisor’s instructions. Not only should he be denied WC, but he should also be forced to pay his employer’s legal fees and other reasonable costs due to his willful negligence.

  6. Charlie DeAngelo says:

    The co. and the courts were 100% right.

  7. Wonderful ruling. Holding employs accountable, what a concept

  8. Justice was served in this case. He also should have been arrested for being under the influence of drugs. He was told at least twice “not to climb the trees”.

  9. No argument here Barbara, your 100% correct.

  10. Barbara has it right. Adults need to act like responsible adults in the workplace. In this case a dangerous workplace. What if Davidson were operating a bucket truck from down below with YOUR responsible unimpaired father/brother/etc riding up high in the bucket? I know a case a number of years ago where this happened and the bucket rider was killed. His corpse looked like a piece of burnt bacon and even the cones on the road were melted. How do you explain this to his family? We need to have regulations that make sense and protect the rest of the employees as well. If Davidson chooses this lifestyle then he needs a non dangerous job where he is unable to harm himself and others. When will common sense become COMMON again?

  11. While I’m not a fan of the ‘zero tolerance’ approach, it seems abundantly clear from both the test results and witness statements that he was under the influence at the time of his injury, and that he willfully engaged in unauthorized conduct, in direct defiance of his superiors. He is entirely responsible for his own predicament. Case closed.

  12. I echo paduke’s frustrations. Our systems are broken beyond repair! Time to hit the resrt button and start from scratch.

  13. I totally agree,but……what happens if he has a “medical” pot card? This is where I believe we are really going to have problems. High or Medicated? that is the question.

  14. What an idiot! Agree with all except the court’s decision about the willful misconduct. Whose fault is it that he was too intoxicated to do what he was told, afterall we should’ve known he was too stupid, stubborn and stoned to follow the rules, right?…NO
    Unbeleivable. At least they denied him worker’s comp! And even though the employer deserves the reimbursement for expenses like some of you suggest…good luck collecting that from someone who’s probably too much of a pot head to hold a job and be able to pay the restitution.
    He’s probably a dead beat Dad too.

  15. So Jason B and Paduke. You feel that because this guy was high on illegal drugs that he should get rewarded for not listening to the owner of the company and the supervisor? For injuring himself on purpose by defying instructions given? I don’t agree with illegals taking work from US citizens but they are working and obeying instruction. 99% of the work that they do is work that US citizens don’t want to do because it’s hard work or it will hurt their pride doing it or they only will get paid minimum wage. These days at least half the US citizens just want a free ride by collecting unemployment and spending their days partying under the sun. They don’t want to work especially the younger generation. I would like to see all illegals get citizenship. AND yes there are some illigals that are using and abusing our system but that is a really low percentage compared to our US citizens who are using and abusing. If our US citizens were not so lazy and filled in these positions there wouldn’t be any work for the illegals, unemployment wouldn’t be as high and our welfare system would be in good shape. ALSO what if that gut that was high who defied instruction were to have fallen on somebody and killed them, would that have been alright?

  16. Safety Doug says:

    Obviously a clear majority of us agree the court ruling was correct. I think a point that has been missed by the group is the attorney who took this case is an idiot with no morals. Probably passed law school with a D-. Think of how much money had to be spent to defend this claim. Even though the burn out did not receive benefits, there is a pile of money against the claim in legal fees and those losses will still count against the employer. What is the snake oil attorney out? Nothing.
    To fix this problem, plaintiff attorneys should be held liable for the employers legal expenses and to reimburse the courts for their expenses when they lose a case. It might make some of the ignorant litigators think twice about taking ridiculous claims like this to trial.

  17. Medical Marijuana is not legal through the federal government and if your company policy says no marijuana and the feds say no marijuana it will be easier to make our case.

  18. Doug, while most of us agree with the court’s decision, they got it right, have you seen any of the goings on in the court rooms today. I do not know if this man’s’ attorney got a D- or an A+ in law school. Why with some of these bleeding heart judges and juries the chance of this idiot getting a judgment in his favor is pretty good. The other part of this is that with some of these cases the attorney knows that some companies would do anything to avoid a costly legal battle. Then you throw in the negative publicity and they will jump at the chance to settle, happens every day. Results, D- attorney gets bug pay day, drugged up claimant also gets a big pay day. Now they can go buy more pot. As I see it, it is not too dumb on their part.

  19. @ Michael D: I compare having a medical pot card to having a scrip for Cough Syrup with Codeine in it. You may have a legal reason to be taking the substance, but you shouldn’t be performing hazardous work while doing it.

    This company, like all companies, should have had a drug and alcohol free workplace policy. Luckily, the courts did the right thing.

    I have to wonder though, if he was that high, why did no one smell it on him when he reported to work? I would have sent him home if I was his supervisor if he smelled like pot.

  20. John Schwelm says:

    For once a refreshing outcome on the side of right. If only all 50 states would embrace it as they have done for $2750.00 tickets for truck drivers on cell phones.

  21. Good for them They Got it Right! @Jason and Paduke did I miss something in the article…where did it say he was illegal. Would you not care if this employee put your life in danger because he was high? Drugs do not belong in the workplace EVER illegal or med card and Im sure you will feel the same if the day comes when you are hurt because of another employee who was high.

  22. In an idustry with such high safety hazards present, I believe all employers must be required to establish and maintain a drug-free work place policy. A policy that requires all employees, including management, to participate. In this particular case, I believe the courts ruled correctly. As a construction worker in California, I know all too well the effects of marijuana consumption in the work place.

  23. The last statement is interesting and your comments are welcome pls. Had he not been intoxicated with dope should the claim be compensable as he was told not to climb unless he had proper gear. I have been done this road with some real silly asses and made case law in doing so…

    http://www.napil.com/DisplayCaseLawDetail.aspx?CaseLaw=42270…1
    Asplundh Tree Expert Co. v. Workers’ Compensation Appeal Board. 6/22/2004 … John Schwelm testified that he investigated Claimant’s accident. Schwelm visited … Page 1 2 3 · Pennsylvania Personal Injury Attorneys Personal Injury Lawyers …

Speak Your Mind

*