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Worker entitled to comp despite positive drug test

Posted On: Oct. 24, 2019 12:26 PM CST

Positive drug test for marijuana THC

A worker who sustained injuries when his hand was crushed by a machine at work is entitled to workers compensation benefits despite testing positive for marijuana, an appellate court judge in Oklahoma held last week.

In Rose v. Berry Plastics Corp., the Oklahoma Civil Court of Appeals in Tulsa reversed an Oklahoma Workers Compensation Commission ruling to deny the worker benefits.

The issue of compensability despite a post-accident drug test is an increasingly common issue for employers.

Dillon Rose worked as a machine operator for Berry Plastics in McAlester, Oklahoma. Several hours after the start of his morning shift on April 11, 2017, he took a 15-minute break and afterward assisted a co-worker on a guillotine machine because a piece of plastic was stuck in the roller. As he and two others attempted to clear the jam, he removed his work gloves to remove the plastic and a co-worker restarted the machine at the same time, causing his left hand and wrist to be crushed.

Mr. Rose submitted to a post-accident drug test, which came back positive for THC and morphine, and Berry Plastics subsequently denied that his injuries were compensable under workers compensation.

Mr. Rose acknowledged that he knew it was against company policy to not wear his safety gloves and goggles and that he did so anyway to clear the machine, but testified that he was clear-headed and knew what he was doing at the time of the accident, and admitted to smoking marijuana about 10 hours prior to the incident.

An administrative law judge granted medical treatment and temporary benefits to Mr. Rose, holding that there was no indication that Mr. Rose was impaired at the time of the incident and noting that had the co-worker not reenergized the machine that the accident could not have occurred. Barry Plastics sought review, and a workers comp commission reversed the order. Mr. Rose appealed.

The appellate court judge reversed the commission’s decision with an order to reinstate the administrative law judge’s ruling.

The appellate judge found that the commission erred, holding that there was “no evidence whatsoever” to refute Mr. Rose’s statements regarding the cause of the accident. The commission had asserted that the “activity and whereabouts during his break” were absent from the record, but the appellate judge found that conclusion erroneous, noting that Mr. Rose named a supervisor and co-workers he spoke with during his break, and demonstrated the commission’s overstep into “finder of fact” rather than evidentiary review.

“The only reason this court can surmise for the (commission’s) injection into the order of a comment about evidence that it says does not appear in the record, when in fact it does exist, is for the purpose of attaching a negative connotation to claimant’s activities during this 15 minute break,” said the judge. “This spurious statement was then used as a basis for denial.”

Although the commission claimed that Mr. Rose’s testimony did not “clearly and convincingly prove his admitted use of marijuana did not contribute to his injury,” the appellate judge rejected the commission’s inference that the presence of marijuana in Mr. Rose’s drug test meant he was intoxicated.