Positive Drug Test Does Not Bar Participation

Positive Drug Test Does Not Bar Participation

Posted: April, 2015

Trent v. Stark Metal Sales, Inc., 5th Dist. No. 2014CA-141, 2015-Ohio-1115 (3/23/15).

Issue: Did a trial court properly bar reference to an injured worker’s inability to pass a drug test after his injury when there was no evidence that he was under the influence of a controlled substance when the injury occurred?

Background: Trent was injured at work. He refused a urine test at the emergency room. A week after the injury, he tested positive for marijuana metabolites. The employer appealed the administrative allowance of Trent’s claim.

The trial court barred the employer from referring to any drug testing issues, stating “marijuana metabolites can remain present in the body well beyond the six-day period at play in this matter and that [the employer] provides no evidence or argument taken from the medical records to show when [Trent] may have used marijuana.” The court barred the evidence because the prejudicial value of the evidence outweighed any relevance it might have.

Outside the hearing of the jury, the employer made a proffer of evidence. During this proffer, Trent testified that although he had used marijuana several weeks before the injury, he had not used marijuana on the day of the injury. The employer also offered testimony from other employees indicating that Trent had admitted smoking marijuana and had stated that he would not be able to pass a drug test.

The trial court found in favor of Trent, and the employer appealed.

Decision: Court of Appeals affirms.

The employer’s handbook stated that “[e]mployees will not be allowed to work with prohibited drugs in their system.” Based on this statement, and Trent’s indication that he had smoked marijuana, the employer argued that Trent’s injury did not occur in the course and scope of his employment. The employer also argued that Trent’s statements about being unable to pass a drug test were relevant to demonstrate that he was under the influence at the time of his injury.

The Court of Appeals rejects these arguments. R.C. §4123.54(A)(2) sets forth the requirements for determining whether an injured worker can be denied the right to participate in the workers’ compensation system for an injury due to their use of controlled substances. That provision denies an injured worker the right to participate in the workers’ compensation system for their injury only if the injury was

[c]aused by the employee being intoxicated or under the influence of a controlled substance not prescribed by a physician where the intoxication or being under the influence of the controlled substance not prescribed by a physician was the proximate cause of the injury.

The statute also creates a rebuttable presumption that an injured worker’s injury was caused by being under the influence of a controlled substance when the employee fails a test administered within 32 hours of the injury. The Court of Appeals notes that no such test was administered, and therefore the rebuttable presumption did not arise.

The Court indicates that the statute would only bar Trent from participating in the workers’ compensation system if the drug use proximately caused his injury. Because the proffered evidence only indicates that Trent had smoked marijuana several weeks before the injury, the Court of Appeals affirms the trial court’s decision.

Editor’s Comment: Just because Trent failed a drug test does not indicate that he was under the influence of marijuana at the time of the injury. As noted by the trial court, an individual may fail a drug test for marijuana for some length of time after smoking marijuana; alternately, although not applicable to Trent’s situation, an injured worker could fail a drug test a week after their injury if they had smoked marijuana at some time during the week after the injury.

Also even if an injured worker is under the influence of a controlled substance at the time of their injury they might still be entitled to participate for their injury. Only drug use which proximately caused an injury bars the right to participate.

In the present case, Trent was injured when a “large piece of steel fell on his legs.” Assuming, for the sake of argument, that he was under the influence of marijuana at the time of his injury, only if the effects of the marijuana caused the injury to occur would he be barred from participating. Presumably, that issue would involve a question of fact for the jury to determine.

Information courtesy of the Ohio Workers’ Compensation Bulletin. Subscribe to the Ohio Workers’ Compensation Bulletin to keep informed about the Ohio workers’ compensation system.