A blog post by Thomas A. Robinson for Lexis Nexis discusses a recent case involving Utah’s law that presumes that an injured worker is intoxicated and that the accident was caused by intoxication if any illicit drug or alcohol is found in the injured worker after the accident. The case concerns a construction worker who stepped off the edge of decking at a construction project and fell fourteen feet to concrete below. A urine sample taken from him at the hospital on the day of the accident tested positive for cocaine metabolites. The construction worker won the appeal on his denied claim by subpoenaing witnesses to testify that the worker was not acting impaired before the accident.
Nevada’s law, NRS 616C.230 is similar to Utah’s law with its rebuttable presumption that a work injury is caused by a worker having any amount of alcohol or a controlled substance in his system. The presumption has been rebutted in two past Nevada Supreme Court cases involving marijuana.
Last year I settled a case that was similar to the Utah case. My client, a drywall installer, had coffee and chatted with supervisors for about ten minutes before starting work. Shortly after he began working, he had to use a short step-up ladder on an uneven floor, He lost his balance, fell, and fractured his wrist. He tested positive for marijuana metabolites at the hospital, and his claim was denied. If we didn’t win his appeal, he would be on the hook for large medical bills, a long period of off work with no benefits, and no award to compensate him for being unable to move his wrist normally.
I was able, however, to rebut the legal presumption that marijuana intoxication caused my client to fall from a step-up ladder that should not have been used on this project. Our expert toxicologist was prepared to testify that the amount of marijuana metabolites found in the client’s urine did not prove that he used it recently or that he was impaired when he had the accident. Additionally, he had supervisors and co-workers who observed him acting and moving normally when he reported for work and had coffee with them.
Some of these intoxication cases can be won by experienced workers’ comp attorneys. You do need to cooperate with your employer’s request that you submit to blood or urine testing immediately after your injury. You also need to be aware that while you may win your workers’ comp appeal and get the claim accepted, your employer may nonetheless fire you for not complying with their company policy on drug or alcohol use.
