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States stepping up efforts to cut benefits for workers hurt while impaired

Use of medical marijuana, other legal intoxicants and burden of proof complicate issue


New laws in two states, New Mexico and Wisconsin, reduce workers compensation benefits for employees injured while under the influence of intoxicants. But it's not a simple process, made harder by laws that have legalized marijuana in about half of the United States.

Workers comp legal experts also warn employers and their insurers that proving intoxication at the time of the accident — particularly concerning medical marijuana and doctor-prescribed opioids — makes winning a challenge of workers comp benefit no easy matter.

“I think everybody is confused” about how the intoxication laws will be implemented and play out, said Quinn Lopez, Albuquerque-based vice president and general counsel at New Mexico Mutual Casualty Co.

New Mexico and Wisconsin revamped their laws effective this year.

Specifically, Wisconsin's law eliminates comp benefits entirely if an injured worker violates an employer's policy on alcohol or drug use and it can be proven the alcohol or drugs caused the injury. Prior to the changes, Wisconsin reduced workers comp payments by 15% in such circumstances.

In New Mexico, a new law reduces comp benefits by up to 90% if the injury was caused by the worker's proven intoxication. The state previously reduced payments in such cases by 10%.

“Just about every state has some kind of provision that addresses the compensability of a workers comp claim if the accident occurs in part or solely due to drugs,” said Bruce Wood, Washington-based vice president and associate general counsel for the American Insurance Association.

Twenty-four states and the District of Columbia have legalized medical marijuana. At least one state, Maine, has the issue on the November ballot. Four states and District of Columbia have legalized recreational use of marijuana.

Chris Reader, Madison, Wisconsin-based health and human resources policy director at the Wisconsin Manufacturers & Commerce trade association, said Wisconsin's previous law “rewarded irresponsible workers” who essentially caused their own injuries. Medical marijuana, it should be noted, is not legal in the state.

Now, “if you are ... intoxicated as a causal part of your injury,” Mr. Reader said, “you will not receive indemnity benefits. That seems to make a world of sense to us.”

Still, Messrs. Reader and Wood said it will be a challenge for employers to prove intoxication.

While determining alcohol level is a straightforward bloodstream test, marijuana is tricky, experts say. Traces of the drug can stay in a person's body up to a month, making it more difficult for employers and insurers to pinpoint when the person smoked or ingested the drug.

“Residual marijuana in the system — how do we deal with that?” said Greg McKenna, Itasca, Illinois-based vice president and counsel for governmental affairs at Gallagher Bassett Services Inc.

States “are creating a situation where we are going to try to investigate claims where there will be a wider net of intoxication,” Mr. McKenna said. “As an industry, we need more refined testing techniques to make those finer decisions of intoxication.”

Albert B. Randall Jr., Baltimore-based president of Franklin & Prokopik P.C., put it more bluntly: “The science and the testing need to catch up.”

Messrs. McKenna and Randall said opioid usage presents similar problems in proving a worker was under the influence at the specific time of the injury, since certain painkillers also may remain in a person's system for 24 hours or longer.

“It's hard enough proving alcohol as an impairment, and I think that's probably the easiest one,” Mr. Randall said.

“I always caution employers using the intoxication defense that oftentimes it's a significant challenge,” he said. The laws “look great, and it's an easy appeal to the public (who thinks), "Why should they be entitled to benefits?' The problem is the proof.”

Witness testimony may or may not help, experts say (See related story).

What employers do have in their favor is that courts have ruled that they do not have to accommodate medical marijuana. If an injured worker tests positive for the drug still banned by federal law, the worker can be terminated for violating an employer's drug-free workplace policy, Mr. Lopez said.

“The employer has the right to set their workplace standards,” he said.

Meanwhile, intoxicated worker laws are in opposition to U.S. Occupational Safety and Health Administration recommendations made last year, in which OSHA recommended against post-injury drug testing that it said may discourage reporting of accidents.

Experts say that goes against the grain of drug- and alcohol-free workplace policies that have long been in place.

“There's a difference in what OSHA is trying to do and what workers comp is trying to do,” Mr. Lopez said.

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