Ruling clarifies pot use, workers’ comp
A recent Oklahoma court ruling that an injured worker can win compensation benefits even with a positive drug test has clarified related law at a time when medical marijuana may soon be widely available in the state, according to legal and business experts.
“The presence of an intoxicating substance in the blood does not automatically mean that person is intoxicated,” the Oklahoma Court of Civil Appeals stated in its Nov. 16 opinion.
The court also sent a stern warning to the four-year-old Workers’ Compensation Commission to stay in its lane and not substitute its judgment about the weight of evidence or facts for that of an administrative law judge.
The workers’ compensation case arose from an accident in 2017 at Berry Plastics Corp. Dillon S. Rose, an employee, had been trying to fix a “guillotine machine” when a co-worker activated the machine, crushing Rose’s hand.
A drug test after the injury showed Rose had recently smoked marijuana, a fact he confirmed in court. His co-workers said he didn’t appear intoxicated while on the job, and he told the judge he was clearheaded and no longer affected by the marijuana, which he had smoked the night before.
After filing a workers’ compensation claim, Rose was required to overcome, with clear and convincing evidence, the presumption that a failed drug test meant the accident was his fault.
The administrative law judge assigned to look at Rose’s workers’ compensation claim approved it, ruling that there was no evidence presented by the employer showing Rose was impaired by drugs during the shift on which he was injured.
The Oklahoma Workers Compensation Commission reversed the judge’s ruling, saying the worker’s story
“requires two great leaps by the commission.”
Commissioners said they would have to believe the man’s “self-serving testimony” and also conclude he was free of any effect of the marijuana from the night before.
Rose then appealed that ruling to the Oklahoma Court of Civil Appeals, which reversed the commission and sided with the administrative law judge and Rose.
The court said it wasn’t the role of the Workers’ Compensation Commission to take leaps or conclude anything. The court said the commission went beyond its duty to determine whether the evidence supported the judge’s decision and took it upon itself to comment on, reject and weigh evidence.
“We must reject the WCC’s underlying inference that the mere presence of marijuana in (Rose’s) bloodstream inevitably means he was intoxicated,” the court’s opinion states.
“While every intoxicated person will show the presence of an intoxicating substance in their blood, the reverse is not true.”
In a footnote, the court said that “had (Rose) used marijuana under a doctor’s order, as permitted by state law, the test would reveal the presence of the drug in his system, and yet the rebuttable presumption would not operate. The critical focus is not whether an intoxicating substance was present in the worker’s system, but rather whether there was a causal connection between the accident and a state of intoxication, from whatever source.”
Interest from businesses
Bob Burke, an Oklahoma workers’ compensation attorney who was not involved in the case,
called the decision “an excellent analysis of the intoxication presumption statute and how it is to be interpreted in the future.”
The court’s opinion has drawn interest from the business community.
The court didn’t change the law but instead clearly interpreted it for the first time, said Adria Berry, vice president of government affairs for the Oklahoma State Chamber.
“You have to take into consideration the drug test along with any evidence that’s submitted,” said Berry, who is not affiliated with the plastics company.
Berry said employers would benefit from more precise tests for marijuana use.
“If there was a test that created a clear sense of when someone used marijuana, that would be very beneficial to employers,” Berry said.
She said employers also need more guidance on whether an injured worker with a medical marijuana license is protected.
More than 13,000 people have received medical marijuana licenses since State Question 788 was approved in June.
“A finding for the employee could help improve workplace safety because it could help employers recognize a more appropriate, real-time procedure for impairment (detection) needs to be utilized,” said Lawrence Pasternack, an advocate for medical cannabis and an associate professor of philosophy at Oklahoma State University.
The liver breaks down marijuana’s active psychoactive ingredient THC, and those leftover metabolites can remain in the body for up to a month, said Pasternack.
An attorney for Berry Plastics Corp., Donald Bullard, said his client hasn’t yet decided whether to appeal the case to the Oklahoma Supreme Court.