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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  1. 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

    • Massvocals says:

      your wrong urine testing can never measure impairment to time and place because the wrong element is tested THC -COOH is tested by urine the element that test if your high in cannabis is delta 9 THC or 8 for this reason no test using P test can even stand legally , lets take a patient using cannabis would test positive and can never work under your view that patient would have to not uses his medical cannabis EVer,,, The cut off are 10, 50 ng of THC COOH in any case anyone using who was a patient would not be high but would test postive is that fair ?

    • Kevin Lawson says:

      First off you would need to be locked in a very small enclosure with about 20 people smoking a “blunt” for about half a day before your urine would show positive!!! Jeesh 🙁

  2. SystemSucks says:

    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.

  3. hankroberts says:

    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.

  4. 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.

    • Hey Anon are you a Medical Doctor? I have been a Safety Director and a Paramedic for over 20 years, and I can tell you with a degree of certainty that the affects of putting any chemical into the body will affect each one differently depending on several factors. Some are age, weight, any underlying medical conditions, and your metabolism rate. So by you saying that the amount of pot found in a persons urine sample has no baring on being impaired in wrong. That being said, he could have been injured because his muscles were weaker than normal because of the amount of pot he consumes when at home. There hasn’t been enough research done on the long-term affects of smoking marijuana, so no one can really testify whether of not the pot in his system did play a roll in his injury.

      • Kevin Lawson says:

        Hi Keith,
        At this time there is no NATIONALLY ACCEPTED OFFICIAL URINE TEST for delta 9 THC . Your either hot or not.
        In response to:
        ” That being said, he could have been injured because his muscles were weaker than normal because of the amount of pot he consumes when at home.”

        Your one of the guys that thinks that everyone that smokes must just sit on there butt all day! Plenty of people (as in Millions) have been functioning just fine for the last 8-10 yrs. I also noticed the opposite of your assessment. Those that I have witnessed ; have more mobility and have improved on muscle mass due to simply being able to move more comfortably…..

        Don’t get me wrong, I certainly believe that you should never be under the influence of any drug that affects your mentally or physically at work/driving/operating machinery.. the usual.

  5. 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.

  6. Los Gzalez says:

    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 says:

      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.

    • 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.

    • “Once a user always a user” is an ignorant statement. You really think no one has ever stopped using drugs before? come on.

      • good come back comment- i don’t believe someone would actually say that. You can smoke a “J” a week ago and could be in your system days later.

  7. 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?)

  8. 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

    • 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.

      • If the employees complete their job tasks, I don’t see the issue. If the employer does not care, you should not either, or just get a new job.

    • If the man had done something that required sober skills and got hurt he would not get compensation, I had a case in Florida where a man sitting by a wall eating lunch got hit in the head by a falling brick, he had pot in his system, he got compensation WHY? because he did nothing that would or could be construed to be due to being high! (unless of course he was eating due to munchies) LOL just kidding but as a safety pro, I can live with and think it fair to use this test to decide compensation. Also face it folks pot is becoming like it or not more common every day,. we have states where it is now legal, I do not personally condone use ,but facts are facts. This guy did noting to warrant being denied comp.

  9. 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.

  10. 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.

  11. 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.

    • This is why pot is a tricky substance. If you smoke on a Friday night, you could test positive for pot during the next work week. Are you high? not at all.

    • Why do we find the term “timely fashion” here referring to reporting the incident 4 days later? That time frame is totally unacceptable.

      • He probably waited (4) days because he know the Company’s policy on testing injured workers and waited until he thought it was safe to do so.

  12. tiffy yammagucci says:

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

  13. Just another way the “man” keeps us down with pot prohibition. This law is clearly on the books to get employers out having to pay for workers hurt on their job sites. They are dishonest.

  14. It is an
    illegal substance. It should not be tolerated on the job. If they could have a
    test like alcohol that would show they are affected now not from a week ago, I
    would reconsider the discussion. It is not the employers’ job to prove when he
    did it. If he would have hurt someone else because he was high then they would
    sue the employer for not preventing the use of drugs in the work place and not
    providing a safe work area as required by law. You can’t have it both ways.

  15. I was injured on the job I was not asked to take a drug screen at the er the day of injury, w/c denied me saying I refused, but my boss called me the next day and asked me to go to urgent care to take a drug screen so I di it was negative but w/c is denying all benefits if I was asked to take one at the er I would have

  16. KO Hefler says:

    By not being under the influence during the work hours, the issue of whether or not the employee smoked dope during off the clock time is irrelevant. The Supreme Court got it right. Why would some of you people agree with a system to dictate morals when there is a comp claim but would be up in arms if the same situation arose at another time?

    Are we going to hang someone out to dry if they are injured at work just because it can be proven that the employee had at any time swilled to much whiskey? Ditto for pulling the wheel at the local casino, or even worse; ogling over a neighbor in tight shorts.

    Sorry, dumb question. Of course while that is ludicrous to assume that is exactly what they are trying to get away with in Oklahoma. You have to keep in mind the whole story from above. It took the Supreme Court to reverse the decision of the Grail Keeper comp judge. A Judge!

  17. Metabolites do not equate to inebriation or impairment. I have seen many comp hearings where this issue was aggressively promoted, only to be thrown out because the employer could not decisively align the prior pot use with impairment at the time of the injury. Rewrite the law or you’ll keep losing these type of cases.

  18. An easy way to put this into perspective, is to consider an employee who has marijuana in their system, and an employer who is egregiously in violation of several safety regulations and is willfully and knowingly putting their workers at risk. When the inevitable happens and the worker gets injured, is it just to refuse the employee compensation for their injury caused by the employer’s refusal to show appropriate care for their employees safety, just because the employee can be shown to have trace amount of drugs in their system that wouldn’t have had any affect on the outcome of the incident? Obviously not!

    Blanket laws providing a company an out for their responsibility based solely on the presence of drugs is wrong. Other disciplinary action may well be called for regarding the employee’s drug use, but not giving the company a free pass for any and all of their sins.

  19. Check the new OSHA rulings coming into play, you will no longer be able to ask for a post accident drug test, as they believe accidents are not being reported do to personnel afraid of being found dirty, yet you can still test do to reasonable cause, and yes we have a flawed system, I had and employee who signed in and out of work injury free for three months, after the job was done he filed a injury claim stating he hurt himself two and a half months prior, all the accident said was plywood I filed a denial to the claim gave all supporting documents including signed in and out sheets, pay stubs and he still got workers comp for two years then when it was reported he could return to work he filed another claim stating he was addicted to the pain medication he received and was put back on workers comp!!!!!

    • Dana Brock says:

      . good for him..I was a machine operator for a granit company in Newnan GA operating a machine in a warehouse by pushing buttons on machine..was pulled off and made to shovel heavy quick sand type sludge from a pit that runs along the whole floor to wash the sludge away so that a man didn’t have to shovel and carry in trash can and lift this very heavy stuff up into a hopper by hand, alone, the pits were not effective in doing the job because the company would not fix the water flow to wash away,,anyway while doing a heavy dob I wasn’t hired to do anyway I fell backwards off the hopper due to the weight of the large can I was dumping after I think about the fifth time..fell onto my butt, back onto wet concrete floor, supervisor seen my laying there so did the owner..owner had supervisor rush my to local medical facility,due to pain in back leg and neck area, I took urine test, xanax was present I told medical professional that I had a legal prescription for them bit had not taken since the day before, Sunday, accident happened at 11:30 am on Monday.firdt day back since weekend.i take xanax for anxiety and panic disorder and by no means do I abuse them.i take less that prescribed but had never taken while on the job either, not that they would affect my ability to work bit because I did seem to need them while at work, my anxiety was under control while working and keeping My mind clear..any way my workers comp was denied and I was terminated all about the same day,21 days after injury,i was unable to go back to work due to fall and they told me not to return till I was ,100 percent.but I was terminated, insurance company paid for my 3 fr visits and for an MRI an attorney couple days before denial and terminated happened,..he deems to think we will win in court and the insurance company attorney wants to settle out of court but offered about a sixth of what my Attorney totaled up for further and possibly surgery.
      .I don’t know what to do. 20,000.00 ain’t crap when having to pay for medical but if I were to lose in court I get nothing….help .my Attorney wants to go to court and I want the work comp back pay and insurance rather than a small settlement…also I was fired and denied benefits before they had proof of my legal prescription for xanax then and 10 months earlier……

  20. The problem with Cannabis is how long it stays in your system and that small amounts of THC and THCA are found in real Cannabis medicine that may be prescribed by a doctor. So, this is a complex issue until we have a qualitative and quantitative test for recent THC consumption. It is coming, but we are not there yet. For those who know nothing about THC, imagine if in this case a hair follicle test was done for alcohol. This test can show positive results for alcohol for three months. How would that be fair? We need more science. Brian

  21. The Court got this one correct. I understand employers having drug policies upon which continued employment is conditioned. However, that is separate from workers’ compensation and whether an injury is compensable. Workers’ compensation laws should have a provision requiring a relationship between any intoxication and the subject accident. Our statute in Alabama also has a proximate cause provision. The absence of such a standard would lead to many unjust results.

  22. Sarah Miller says:

    Ok so I hurt myself today at work I had to go get a drug test but the problem is I took some Xanax like 2 weeks ago do you think I will fail?

  23. Ok, I’m the president of a site development company, we have a 0 tolerance drug and alcohol policy. If a equipment operator is operating a backhoe and is under the influence of any drug, legal or not, would you want to be working within his strike zone, say in a ditch?? I certainly wouldn’t!

    Where would the liability lay if someone was injured or killed by being struck with a piece of equipment while under the influence?? I’m sure with the employer.

    In the case posted earlier of the collage that allows or ignores pot smoking: What would happen if a power equipment operator, say mowing the lawn would strike a student and the operator would test positive for drugs or alcohol, even if it was drugs that he had a script for, say oxycodone ? How would you feel if that was your child struck??

    The fact of the matter is that there is no place in the work place for drugs and alcohol in your system. The practice of allowing this will result in the degradation of the work place and people can get killed.

    • I think that for any drug that someone tests positive for that they have legal prescription for, there should be a quantitative test done many pain med and others that may impair someone can take over 24 for the body to completely eliminate all traces when the effect of the is usually completely gone in no more than 4-6 hours. For that matter there are antidepressants that can affect people in a way that can be just as potent as what is tested for, so without quantitative it’s not a test of impairment, merely suggestive. So does your no tolerance take into account someone going to er and being administered a dose of pain meds, or anti-anxiety and it so being in their urine 1-3 days later depending on they metabolic rate?

  24. The assault on this gentleman was the direct cause of his injury……………not the THC in his system.
    Was he impaired? Who knows. What we DO know is that he was attacked and injured. WC all day long.

  25. Lightnin' Hopkins says:

    So many of these comments are completely missing the ball. I’ll start by saying this, policy or not, what an employee does on his/her own time is none of their business. Next, no employee should ever be under the influence of marijuana, alcohol, and/or drugs while on the job.

    There are two huge problems with this incident. One, he didn’t report it in a timely manner. Reporting four days later is not timely. Heck, there was a physical altercation that was most likely documented immediately. The employee should have been evaluated immediately thereafter. The evaluation should include a medical check, plus post incident drug and alcohol screening. Alcohol results will come in real time. As for marijuana, it’s about time the technology comes out for real time testing. It’s being developed and should hit the market for law enforcement and post incident screening asap. Once real time testing for marijuana is available, there’s no more arguing over blood and urine screening levels.

    Marijuana is almost readily available for use as alcohol is. Legal and medicinal states have created easier access and it’s always been around on the black market. It’s time to start treating marijuana like alcohol and stop wasting time and money arguing over a bunch of BS.


  1. […] if an employee shows up to work high on drugs and is subsequently injured the employee might not be entitled to workers compensation benefits (or they might be) depending on your state’s laws. If you have […]

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