Risk & Insurance Online

Does a worker's drug use let his employer off the hook for workers' comp benefits?

By Elizabeth Morrow

The operator of a sheep's foot roller suffered multiple injuries when the machine tipped over and ejected him. At the time of the accident, the employee was working on a highway widening project and had operated the same type of roller approximately 100 times. A drug test administered at the hospital revealed a level of marijuana in his system that was more than four times the level to establish a conclusive presumption of impairment under Kansas law.

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His claim for workers' compensation benefits was initially denied, but he was eventually awarded permanent partial disability benefits, past temporary total disability benefits and authorization of medical expenses.

On appeal, the employer contended that the worker was blocked from receiving workers' compensation benefits because the impairment presumption applied and the evidence established that the worker's use of drugs contributed to his injuries. It presented testimony that the worker was not wearing a seat belt, exercised poor judgment in backing over a large pile of dirt several times, and appeared "a little goofy or squirrely" just before the accident.

The worker admitted that he used methamphetamine and marijuana the day before the accident but testified that he was "clearheaded and not on drugs" the day of the accident. He presented expert testimony that the effects of marijuana last "only a few hours," and he had last smoked marijuana more than 15 hours before the accident.

Is the employee entitled to workers' compensation benefits?

A. Yes. The impairment presumption didn't apply because 15 hours had elapsed between his drug use and the accident.

B. No. The level of drugs in his system triggered the conclusive presumption that he was impaired, and the employer linked the accident to that impairment.

C. Yes. The employer failed to demonstrate that the employee demonstrated erratic or unusual behavior on the day of the accident.

How the court ruled: B.

The Kansas Court of Appeals reversed the award of benefits, finding that the employer met its burden of proving that the employee's drug use contributed to his injuries. Wiehe v. Kissick Construction Co., et al., No. 102,669 (Kan. Ct. App. 05/06/10).

In Kansas, once an employee tests at or above the established quantitative level for alcohol or drugs, he is considered impaired and no additional evidence or argument can overcome that fact.

However, the employer must still demonstrate that the employee's drug use contributed to his injuries. An experienced operating engineer testified that the employee's attempts to run over a mass of dirt "showed an extreme lack of judgment for an experienced operator." Further, if the employee had been wearing his seat belt, he wouldn't have been ejected from the machine.

The court explained that "just because an employee does not display any erratic or unusual behavior does not mean that the employee's presumptive impairment would not have caused or contributed to the accident."

A is incorrect. The level of drugs in his system triggered the presumption, regardless of the passage of time.

C is incorrect. Kansas law does not require that the employer present such evidence.

ELIZABETH MORROW, ESQ., is the legal editor of the WORKERSCOMP Forum^TM .

This feature is not intended as instructional material or to replace legal advice.

Read more at the WORKERSCOMP Forum^TM homepage.

June 17, 2010

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