In 2001, the General Assembly amended the workers’ compensation law to provide that an injury caused by being under the influence of alcohol or drugs is not compensable under the workers’ compensation act. In addition, the law was amended at that time to provide that certain positive tests for drugs would trigger a presumption that the employee was under the influence when the injury happened, and that such was the cause of the injury. Many people believe that a positive drug test after a work-related accident will automatically result in the denial of workers’ compensation benefits. Both the law and the relevant science are more complicated than that. The fact is that in many cases a positive post-injury drug test does not prove that the injured worker was under the influence of drugs at the time of the injury, or that the injury was caused by drug-induced impairment. Using cases involving a positive test for marijuana, let’s look at some of the legal and medical issues which can lead to the successful pursuit of a claim after a positive test.
The first step is to determine the circumstances under which the test occurred. Ohio Revised Code 4123.54(B)(1)(a) provides that when a “qualifying chemical test” establishes the presence of marijuana metabolites in a concentration 50 ng/ml of urine or above, a presumption arises that the employee was under the influence, and that being under the influence was the cause of the injury. Revised Code 4123.54(C)(1) defines a “qualifying chemical test” as one a) based on “reasonable cause to suspect that the employee may be intoxicated” b) ordered at the request of a police officer under the OVI statute, or c) ordered by a physician “and not at the request of the employee’s employer.” Many employers have an across-the board policy requiring that any employee involved in an accident on the job must submit to a drug test. Routine post-accident drug tests do not meet the statutory definition of a “qualifying chemical test” and therefore the statutory presumption that intoxication was the cause of the injury does not arise. As result, the burden of proof is on the employer to prove that the employee was under the influence, and that being under the influence was the cause of the injury.
What does this mean to a person who has tested positive for marijuana after being hurt on the job? It means that a failed post-accident drug test does not necessarily mean that you are not eligible for compensation. The employer does not win simply by submitting a lab report. An attorney experienced in these matters and familiar with medical and scientific information regarding the tests performed and the effects of marijuana may be able to overcome the employer’s efforts to deny compensation.
Employers often try to use the test results to prove that the employee must have been under the influence of marijuana. There are a number of problems with this approach. What the typical urine test for marijuana detects is a substance known as carboxy-THC. Carboxy-THC is not a psychoactive substance. It is a metabolite, or a product of the chemical breakdown inside the body, of the psychoactive substance in marijuana. Carboxy-THC can be detected in urine samples taken several days, and in some cases three to four weeks, after the individual last smoked marijuana. The physical and mental effects of marijuana typically begin almost immediately, and the peak effect usually occurs within approximately thirty minutes after use. The “high” following marijuana use normally lasts for about two hours, and most physical and behavioral effects will run their course within three to five hours. Because the time frame for detection of carboxy-THC is a great deal longer than the duration of marijuana-induced impairment, a positive urinalysis does not prove impairment. It therefore is important to look at other evidence which can help to determine whether a person who tested positive was actually under the influence of marijuana at the time of the injury.
Marijuana has a number of physical effects. Most common of these are tachycardia, or rapid heart beat, bloodshot eyes, and dryness of the mouth and throat. Psychological effects include reduced concentration, impaired memory, difficulty forming and expressing thoughts, an altered sense of time, and drowsiness. Examination of medical records can provide important evidence to rebut an argument that the injured person was under the influence of marijuana at the time of the injury. If emergency room records reveal a normal heart rate and state that the injured patient was alert, well-oriented and able to give a medical history without difficulty, such records would provide a reasonable basis to argue that the individual was not under the influence.
Finally, the circumstances of the accident are important. In many cases, the mechanism of injury may be one which is common for the industry. If the evidence indicates that the injured person was hurt while performing his assigned work duties in the usual manner, and the injury resulted from a hazard which is commonly encountered, then there is little reason to suspect that drug use had anything to do with the situation.