Safety and OSHA News

Why does he get workers’ comp after failing drug test?

An employer refused to pay for an employee’s medical treatment after a post-accident drug screen detected two substances in his system. So why did a court recently rule that the employee should get workers’ comp benefits? 

In April 2012, Shannon Bordelon received a severe injury to a finger while working for Key Energy Services in Louisiana.

Bordelon was using a crank to lower a light tower when the crank spun out of control, striking his hand.

With a fractured finger and a laceration, a doctor recommended surgery.

But Key refused to cover the procedure or any other treatment for Bordelon’s injury because a drug test found cocaine and amphetamines in his system.

Key fired Bordelon who eventually had to have part of his finger amputated.

The case went before a Louisiana workers’ comp judge (WCJ). Key pointed to the positive drug test as reason to deny workers’ comp benefits.

Bordelon denied cocaine use but admitted taking two weight loss pills (amphetamines) two days before he was injured. He also questioned the validity of the drug screen, alleging the testing facility failed to follow protocol.

The WCJ ruled in favor of Bordelon. The judge found the cause of his injury wasn’t related to drug use. Under the judge’s order, Bordelon was to receive compensation benefits minus a credit for unemployment benefits and undeclared income.

The judge also found Key failed to adequately investigate how Bordelon was injured. Therefore the judgment against Key also included $2,000 in penalties and $15,750 in Bordelon’s attorney fees for the improper termination of benefits.

Key appealed to a state court.

Safety mechanism missing

Louisiana law provides a “defense of intoxication” as a reason companies can refuse to pay workers’ comp benefits if an employee’s drug use contributes to his/her injuries.

The Louisiana court of appeal noted the WCJ recognized that:

“The crucial question here really is if cocaine or one of its metabolites were in the body of Shannon Bordelon, was he impaired at the time the crank handle spun out of control, smashing his hand in the process. Was the degree of intoxication a contributing cause of this accident of not.”

The WCJ had noted no one suggested Bordelon appeared impaired the day he was injured.

Also, Bordelon testified that, unlike other cranks he had used, this one didn’t have a safety mechanism on it.

Bordelon’s injury happened on a “damp day,” and the crank handle was wet. The handle slipped from his hand and spun out of control because it didn’t have the safety mechanism.

On this matter, the WCJ wrote:

“I think the overarching problem here was that once the employer saw the term ‘test positive,’ it was decided that the case should be closed and shut instantly and no more investigation or inquiry was required. That assumption is incorrect.”

The appeals court said the WCJ had ruled correctly that Bordelon had successfully rebutted Key’s claim that any drug use had contributed to his injury.

Key also argued that it shouldn’t have to pay the penalties and Bordelon’s attorney’s fees. The appeals court agreed with the WCJ that, since the company didn’t reasonably contradict Bordelon’s claim, the attorney’s fee and penalties were appropriate.

So despite the positive drug test, Bordelon will receive workers’ comp benefits because the company couldn’t disprove his claim that the missing safety device, not any drug use, was the real cause of his injury.

The take-home from this case: A positive drug test doesn’t necessarily lead to denied workers’ comp benefits. A company has to be prepared to disprove an employee’s claim that drug use had nothing to do with an injury.

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

(Shannon Todd Bordelon v. Key Energy Services Inc., Louisiana Court of Appeal, Third Circuit, No. 12-03223, 5/7/14)

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  1. Michael jones says:

    I was frostbite while performing a task a work I started dec 26 in orentation they told me they had seclected workers to go into the freezer they would be dealing with dry ice I would not so everyday I dressed accordingly to what I was selected to do but on this day feb 13 at 6 o clock pm I had to deal with going in the freezer and dealing with the dry ice I had gloves on was in there a hour out round 7 it was 125 cases 33 special items which was ice cream after I finish the order came out my hands where freezing got off work went home my hands started to ack and the never defrosted I a lot of pain at 12 I went to the er nun they could do went to another one they put my hand in warm water it helped a lil gave me a doctors note I was not allowed to return to the freezer until sensation returns the next day I went to work with the doctors note and my hands where so bad I could not even as much as tie my shoes they drug test me and I fail they fire me for being hurt while performing a job dutie

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