If an employee has drugs or alcohol in his system when he is injured at work, will he be barred from workers' compensation benefits? Not necessarily.

In a case out of Montana, decided on March 22, 2011, Brock Hopkins, an employee at Great Bear Adventures wildlife park, was awarded workers' compensation benefits for injuries he sustained when he was attacked by a bear, despite the undisputed fact that he had smoked marijuana on his way to work that day. Hopkins v. Kilpatrick, Mont., No 2011-49, 3/22/11. When he entered the bears' pen to perform his feeding duties, Hopkins apparently was not the only one with a case of the "munchies" as the largest bear, "Red," knocked Hopkins to the ground, sat on him, and bit his leg, knee and rear end. In affirming the Montana Workers' Compensation Court, the Supreme Court of Montana decided that Hopkins was entitled to benefits because he acted in the course and scope of his employment at the time of his injuries, and that marijuana was not the "leading cause" of the injuries. As to the former, the Supreme Court stated that the employer "benefited from the care and feeding of the bears that Hopkins provided since presumably customers are unwilling to pay cash to see dead and emaciated bears." While the Court characterized Hopkins' marijuana use prior to working around grizzly bears as "ill-advised to say the least and mind-bogglingly stupid to say the most," the Court rejected the impairment as the "leading cause" of the injury, stating that grizzly bears are "equal opportunity maulers" without regard to marijuana consumption.

Workers' Compensation laws differ from state to state, and Ohio does not follow the "leading cause" standard of Montana. Nonetheless, in Ohio, evidence that a claimant had drugs or alcohol in his system at the time of an occupational injury is not a "slam-dunk" defense to a claim for benefits. All too often, employers interpret a positive drug or alcohol screen as the "smoking gun" that will save their experience rating from that potentially costly claim. However, positive drug tests are inadmissible at the Industrial Commission or court of common pleas unless certain procedural requirements are met, and supplemental evidence often is necessary to avoid a successful rebuttal. In order to make the best use of an injured employee's positive chemical test, Ohio employers should consider the following points.

Procedural Requirements

ORC 4123.54(B) requires that an employer post written notice to employees that the results of, or the employee's refusal to submit to, a "qualifying chemical test" may affect eligibility for workers' compensation benefits. The notice must be posted at least as large as, and in the same location as, the employer's Ohio Bureau of Workers' Compensation certificate of premium payment notice or certificate of self-insurance. If these requirements have been met, then, when an injured employee tests positive to a qualifying chemical test within eight hours of the injury for alcohol, or within thirty-two hours of the injury for other specified controlled substances not prescribed by the employee's physician, the results raise a rebuttable presumption that such "intoxication" was the proximate cause of the injury --an employer defense to claim compensability. A refusal to submit to such a test also may raise the presumption.

The "Qualifying Chemical Test" and Supporting Evidence

Even if all procedural requirements are met, a chemical test administered to an employee after an occupational injury is not a "qualifying chemical test" under ORC 4123.54, unless (1) the employer had "reasonable cause" to suspect the employee may be intoxicated, (2) the chemical test was performed at the request of a police officer, or (3) the chemical test was performed at the request of a licensed physician who is not employed by the employer. In most claims, the second and third scenarios are not at issue and an employer is left to explain its "reasonable cause" for the test. Therefore, when an employee's injury is suspected to have been caused by drug or alcohol use, it is vital that employers investigate and document any tangible evidence of the employee's possession, use or distribution of alcohol and other controlled substances to satisfy the "reasonable cause" standard. This can include, but is not limited to, witness statements documenting the employee's slurred speech and alcohol- or drug-related odor and/or performance documentation showing abnormal conduct, such as deteriorating work performance and frequent absences or tardiness. Witnesses should also be made available to testify at Industrial Commission hearings or at trial, if necessary.

The "take away" from the Hopkins case for employers is to recognize that impairment itself does not automatically bar receipt of workers' compensation benefits... and, of course, that people really should not mess with bears... particularly after getting stoned.