I’m not writing to debate the pros or cons of medical marijuana. I’ll leave that to others. It’s a debate playing out in many states. Last week, two Alabama Senators (both of whom are doctors) debated the topic in the Senate chamber. One Senator, an anesthesiologist, debated in support of medical marijuana. The other, an obstetrician, debated against it. The Alabama Legislature has been debating bills that would allow medical uses.
Again, I’m not writing to debate the proposed legislation. My blog deals with Alabama personal injury issues. How would legal marijuana impact Alabama workers’ compensation claims? I believe the issue intersects personal injury law in a number of ways. From car wrecks to work comp, it’s an issue that will impact claims. For today, let’s talk about possible impacts on work comp.
Impairment or intoxication from drugs and alcohol can be a defense to work-related injury claims in Alabama. While substances like alcohol may be legal (for adults), a delivery driver who injures himself in an accident caused by his own drunk driving is not going to receive full work comp benefits.
How will legal marijuana affect work comp claims? Will alcohol and marijuana raise different issues? Here are some impacts I see.
- Testing will be less clear.
If you are hurt on the job, many employers promptly send you for a drug test. Before he even examines you, the company doctor will probably administer a drug test.
Where alcohol has a short lifespan in a patient’s blood or urine, marijuana can linger. Marijuana detection times vary widely based on several factors including body weight, amount of consumption and frequency of use. For someone who regularly smokes marijuana, detectable traces can linger for a long period of time. What does that mean? It means you could test positive long after the impairing effect has ended.
Do you think the insurance company is going to accept your story that you smoked weed long before or long after, the accident? Probably not. Instead, the insurance company is going to deny the claim based on a positive test. As I discuss below, that does not mean your claim is finished.
The testing variables with marijuana are much greater than with alcohol. The uncertainties much more. That means testing will yield results less certain for the time of the accident.
- Causation will be more difficult.
The Alabama Department of Labor has a website with work comp information. One of its website pages, contains a guide for insurance company adjusters and lists various activities that may “negate” a workers’ compensation claim. Their list says a work comp claim may be negated “[b]y the employee’s intoxication from alcohol or use of illegal drugs.” But, that’s not really correct. Alabama law actually says:
no compensation shall be allowed for an injury or death caused by the willful misconduct of the employee, by the employee’s intention to bring about the injury or death of himself or herself or of another, his or her willful failure or willful refusal to use safety appliances provided by the employer or by an accident due to the injured employee being intoxicated from the use of alcohol or being impaired by illegal drugs.
Let’s assume the Legislature amends this law to include legal marijuana with alcohol. That still does not mean intoxication works an automatic denial of claims. You have to look at the word “due” in the statute. It applies to accidents “due” to impairment / intoxication. The question becomes — Was the impairment / intoxication a cause of the accident? It’s an important distinction. Years ago, I represented an industrial roofer who fell 30 feet when a roof collapsed at a plant near Scottsboro. He lived, barely. He was also paralyzed for the remainder of his life. The worker (and every other member of the crew) was intoxicated. Honestly, I think everyone at the site was drinking alcohol. But, the roofer did not fall from the roof. He did not stagger to the edge and fall over it. No. The roof actually collapsed underneath him without any warning. He was standing where he had been instructed. The accident would have happened to anyone, sober or intoxicated. We won the case because the accident was not “due” the intoxication.
I have had several cases over the years where the insurance company could NOT prove the accident itself was due to the alcohol or marijuana use. I won another case in Huntsville on the issue of impairment where co-worker testimony was really key. In that case, the employee tested positive for marijuana at the doctor’s office. The problem — the company waited a week to send him to the doctor. I called co-workers as witnesses who testified my client did not appear impaired at the time of the accident. My client admitted consuming marijuana a couple days after the accident. We won our case at trial and on appeal. The Alabama Court of Civil Appeals noted:
The company is still required to prove that the impairment by the illegal drugs proximately caused the worker’s injury. Whether the worker’s injury is proximately caused by the impairment by illegal drugs is a question of fact,
Why do I think causation is a more difficult issue with marijuana? One reason is the testing issue I mentioned previously. Testing is less clear. A second issue is the visible evidence of impairment. With the effect of alcohol on a person’s motor skills, impairment is visibly obvious at a lower threshold. I believe workers impaired by marijuana may be less obvious to co-workers. These c0-worker witnesses can make the difference.
- Litigation will be more common.
Testing issues. Impairment issues. Causation issues. Add to these issues the fact that workers’ compensation cases are decided by sitting judges. That’s the human factor. Different judges have different opinions about alcohol and drugs. When two state senators who are both physicians openly debate the issue of medical marijuana, you know the issue evokes clear opinions. Judges will have those differing opinions and biases as well. That means uncertainty.
All of these combined issues will result in disputes. Disputes result in litigation. I would expect courts to increasingly decide issues of whether or not an accident was caused by an impairment.
How will the Alabama Legislature decide the medical use issue? I don’t know. I do know that states allowing some form of use are now seeing some of the work comp issues I mentioned.
At the Blackwell Law Firm, we specialize in cases of serious personal injury. From our office in Huntsville, we represent clients across Alabama.