Tulsa Attorney BlogWorkers Comp Drug Test Mandate Fails Appellate Review

workers comp drug testYou were hurt on the job by no fault of your own. The employer’s workers compensation company demands that you take a drug test. It comes up positive for marijuana.

Citing a 2011 Oklahoma law, the employer refused to pay medical costs. The 2011 law appeared to create a “zero tolerance” policy for injured Oklahoma workers who failed post-accident drug tests. That’s not what the law says, an Oklahoma appeals court ruled earlier this month.

The case involved an Oklahoma County Juvenile Bureau employee who tested positive for marijuana after he incurred a shoulder injury while subduing an unruly juvenile. The employee said he had not smoked marijuana, but had likely been exposed to second-hand marijuana smoke. The agency’s insurer refused to pay. He appealed.

The court declined to consider whether a law denying insurance coverage to workers who tests positive for illegal drugs is unconstitutional. Instead, the court “harmonized” language of the newly written workers compensation law. Here’s how.

Were Banned Drugs the ‘Major Cause’ of Accident?

The final sentence of a section in the new workers comp law dealing with illegal drug, chemical or alcohol consumption seems unequivocal:

“For purposes of workers’ compensation, no employee who tests positive for the presence of substances defined and consumed pursuant to …Oklahoma Statutes, (including) alcohol, illegal drugs, or illegally used chemicals, or refuses to take a drug or alcohol test required by the employer, shall be eligible for such compensation.”

But two previous sentences in the same law appear to say something different. The relevant section denies workers coverage for an injury only when it is:

“(…a)n injury which occurs when an employee’s use of illegal drugs or chemicals or alcohol is the major cause of the injury or accident. The employee shall prove by a preponderance of the evidence that the use of drugs, chemicals or alcohol was not the major cause of the injury or accident.”

To “harmonize” the two conflicting passages, the appeals court determined that, when an employee refuses or fails a post-accident drug test, it becomes the employee’s burden to prove that drug or alcohol consumption was not the “major cause” of the accident. With that bit of judicial interpretation, Oklahoma employers who try to get out of compensating injured workers can no longer hide behind a $40 drug test.

If you’ve been injured on the job and denied workers compensation coverage, you may have a right to appeal. Arguments or evidence presented during a workers compensation claim hearing can make a significant difference when appeals courts review the decisions of Workers Compensation Court judges. That’s why the counsel of an experienced workers compensation attorney can be important at every phase of a workers compensation case.

Free Consultation: Tulsa, OK Workers Comp Attorney

To find out if you’ve been offered every penny of compensation to which you are entitled after a workplace injury contact a Tulsa workers compensation attorney today. The workplace injury lawyers at Wirth Law Office offer free initial consultations for workers injured on the job in Oklahoma.

To find out more about your rights after a workplace injury, contact Wirth Law Office today at (918) 879-1681. If you prefer written correspondence, please send us your question using the form at the top of this page.

Read the full text of Hogg v. Oklahoma County Juvenile Bureau here.

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