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Work comp benefits awarded to employee who tested positive for drugs

As an employer, you expect your employees to be both safe and lucid while on the job. This means that employees must understand that intoxication of any kind -- whether from drugs or alcohol -- will not be tolerated and can perhaps lead to disqualification for work comp benefits in the event of a workplace accident. Interestingly enough, a recent workers' compensation defense case out of Louisiana actually awarded work comp benefits to an injured employee who tested positive for drugs.

According to the facts of the case, Dolores K. was working as a restaurant server at Louisiana seafood restaurant back in 2008 when she fell over a box of potatoes located on the floor in the food preparation area. She was taken to the emergency room after the fall, where she was diagnosed with a broken wrist.

However, she was also administered a drug test -- as mandated by the seafood restaurant's work comp carrier -- and tested positive for the presence of both marijuana and the prescription drug Xanax.

Consequently, the work comp carrier denied benefits, covering only the emergency room visit, and Dolores K. appealed the decision.

The presiding workers comp judge awarded Dolores K. both temporary total disability benefits and medical care/treatment. Specifically, the judge found that the Xanax was not an issue because it had been legally prescribed for a preexisting back problem and that intoxication had not been a contributing cause of the accident.

The seafood restaurant and work comp carrier filed an appeal to the 3rd Circuit Court of Appeals of Louisiana, arguing that the work comp judge had erred in finding that intoxication had not been the contributing cause of the accident.

Here, the appeals court indicated that the burden is initially on an employer to prove that an injured worker was intoxicated at the time of their injury and that the burden then shifts to the injured worker to prove that the intoxication was not a contributing cause of the workplace accident.

After determining that the seafood restaurant/work comp carrier had met their burden, they also determined that Dolores K. had met her burden.

"Based on the testimony that [Dolores K.] had performed her job all morning without complaints from the customers or any other staff members and that she had smoked marijuana four days prior to the accident, not on the day of the accident, we cannot say the WCJ was manifestly erroneous in finding that [she] had overcome the presumption of intoxication," wrote the court.

Here, the court also found that it was not intoxication that was the contributing cause of the accident, but rather the boxes of potatoes stacked in the food preparation area where servers are required to go.

Stay tuned for more from our workers' compensation defense blog ...

This post was provided for informational purposes only and is not to be construed as legal advice. Names have been withheld to protect the identities of the parties.

Source:

Business Insurance, "Injured worker entitled to comp benefits despite positive drug test: Court" Feb. 3, 2012

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