We hear it time and again, "the states where marijuana is legal." I have heard that phrase or something similar from an assortment of knowledgeable, well-educated, and seemingly well-meaning members of the workers' compensation community in recent years. There is a disconnect in that perspective, as what they really mean to communicate is that the use of marijuana has been decriminalized in particular states, under particular state's laws.

The fact remains that marijuana is illegal. Recently, the Maine Supreme Court recognized this, see Federal Law Matters in Maine. It was previously recognized similarly by the Colorado Supreme Court in Coats v. Dish Network, discussed more fully below.  

Pot is a complicated subject; some thoughts on it are described in Marijuana May be a Problem - You Think? Notable among problems are the current lack of science to support medical use, the federal illegality, and questions about its side-effects and potential detriments. Remember, "medical marijuana" remains an oxymoron, as the substance is not legally accepted for treatment of any medical condition (by definition, Schedule I). There are some approved medications that employ marijuana derivatives; I leave to the reader whether that is a valid distinction.  

But, at least as regards marijuana, the current trend is to ignore the law. The federal government, under two seemingly very different Presidents, has acquiesced in the production, transport, and sale of vast quantities of cannabis in America. Thus, while it remains illegal there is little if any enforcement of the federal law (we know where it is grown and sold if the government wished to stop it). Whether one agrees with its use or presence, it appears clear that weed is here to stay, regardless of what the law says.

The presence of marijuana in our society will provide us with a variety of challenges. That is being discussed by safety personnel often. In parallel to the various commentator comments I hear of "pot is legal," I hear safety professionals lament their fears of accidental injury related to, contributed to, or caused by pot intoxication/impairment. A major challenge with this will be that, as yet, there is reportedly no reliable process for Measuring Marijuana Intoxication. That is a complication specifically of pot. Despite the scientific challenges of determining intoxication, Colorado has adopted a presumption of pot "impairment" at 5 nanograms of THC per milliliter of blood. See C.R.S. 42-4-1301(6)(a)(IV) (2017). I have heard several argue over whether there is science to support that standard, but it has been statutorily adopted nonetheless. 

The fact is that blood alcohol can be similarly measured. With alcohol, presence has been shown to equate to impairment. Over the course of decades, following the abolition of prohibition, America struggled with alcohol on its roads and in its workplaces. States now have strict laws regarding driving under the influence, in many instances based upon a "presence" equals "impairment" presumption. And, now even states like Florida that do restrict pot access are advertising about laws prohibiting driving under the influence of pot (a seemingly tacit admission that it is in society); Those prosecutions may be more difficult because of the different pot analysis of "presence" and "impairment." 

A similar effort has included addressing alcohol and other drugs (alcohol is a drug) in state workers' compensation laws, reflected in a 50 state survey produced by Lexis Nexis. There is a perceived safety threat from working while impaired. Those who lament a law punishing an employee (or his family) for pot use on-the-job might feel differently if a pot-using employee operating some equipment injured a sober co-worker. Would the employer be perceived as negligent for allowing the pot-using employee to be at work? Would the sympathy be with the innocent injured employee or the pot-using (or otherwise impaired) worker that caused injury? 

Thus, it is possible and perhaps probable that if you are injured at work and found to have been under the influence of alcohol or other drugs, such a finding might affect entitlement to or amount of workers' compensation benefits. Florida is one off many states with such potential ramifications. This legal construct might be seen as deterrent for employees. Employees might think of the workers' compensation consequences before working under the influence, but then again so might drivers. 

In Florida, the state says 24,334 DUI convictions were rendered in 2017. Despite the illegality, the danger of injury or death, and the financial burden that a DUI can cause, people nonetheless drink and drive. Somewhat surprisingly, the drive for self-preservation and arrest-avoidance does not deter some from that activity. One might wonder if the workers' compensation penalties for impairment or intoxication are likewise disregarded by workers who chose to ingest and then work?  

This all came back to mind with a July 2018 headline from the Denver Post: Colorado denies widow half of late husband’s workers’ compensation due to his marijuana use. The story is brief, providing little detail. Essentially, Adam Lee was working on a ski lift when he was crushed to death last December. Blood testing established the presence of THC, and so the workers' compensation death benefits for Mr. Lee's family have been reduced 50%. It is worth noting that some states might deny all benefits if drug impairment were demonstrated, and some states presume impairment from the presence of drugs.

Somewhat more thorough coverage comes from Denver ABC affiliate Channel 7. It's headline leads with "legal marijuana use." But, the issue of "legal use" of pot has already been addressed by Colorado's Supreme Court in Coats v. Dish Network, 350 P.3d 849 (Co. 2015). That decision is discussed in Federal Law Matters in Colorado. Essentially, Coats sued his employer when he was terminated for failing a drug test at work, after admittedly smoking marijuana on a doctor's recommendation (doctors will not "prescribe" marijuana as it is illegal). He claimed that the termination violated his rights under the "Colorado's 'lawful activities statute.'” That law essentially says that employees may not be fired for engaging in legal activities outside of work.  

The Colorado Supreme Court concluded that this state law protection did not apply to Mr. Coats' use of pot outside of work. It noted that while Colorado had decriminalized the use of pot, that substance remains illegal under federal law (as the Maine Supreme Court recently noted, see above). Despite what you hear about pot "being legal," it simply is not. 

Mr. Lee's widow is now seeking a judicial determination that the workers' compensation insurance company should not be allowed to reduce her workers' compensation death benefits. Her livelihood has been significantly affected, and she and her children are struggling with financial survival. Without knowing the details of Mr. Lee's earnings or specifics of Colorado law, understand generally that workers' compensation tends to almost never replace 100% of pre-injury earnings. When the reduced "normal" figure is then reduced 50% (purportedly $800.00 per month in this case), the effect may be significant upon the payment of a worker's family's bills. 

Will the case come down to an issue of "intoxication," that is: was Mr. Lee under the influence of, or impaired by, pot when he died? In that regard, it is possible that the use of pot, or "being high," might be viewed no differently than being otherwise "intoxicated," or "under the influence" on the job. Taking prescribed medications, over-the-counter remedies, or even alcohol might well render one "impaired," and a potential danger to themselves or others. To deter people from such circumstances, one might defend the scheme of a reduced benefit for any accident resulting from such intoxication. If one could lose a job or suffer economic damage (reduced injury benefits) one might choose not to work after use of such substances. This deterrent effect is possible, but some will argue it is not probable.  

Or, will the case come down to an issue of "presence." That is a complication of marijuana. Marijuana remains detectable in drug screenings long after the "high" passes. One might smoke marijuana and have THC (or its metabolites) detectable in urine testing for 8-77 days, according to this herb.co post. However, the evidence of THC itself in the blood may last only 2 days, according to this herb.co post. Thus, if THC evidence is discovered on a post-accident drug screening, depending on the type of test, it might suggest very recent or very remote drug use. Should remote drug use result in reduced or denied workers' compensation benefits? 

Mr. Lee became "caught" and was tragically crushed to death in a ski lift. The evidence of his marijuana use came from postmortem testing. A graphic in the Channel 7 video represent that the "high level" of THC found was 41 nanograms per milliliter. Remember, Colorado presumes impairment for drivers at 5 nanograms of THC per milliliter of blood. See C.R.S. 42-4-1301(6)(a)(IV) (2017). Channel 7 noted the intoxication conundrum, stating "that current science can't determine if Adam was impaired or intoxicated at the time of his death." But, its investigation does not discuss the 5ng/ml legal presumption, nor expound further on the 41ng/ml test result represented in the graphic

Perhaps the trial of this matter will include evidence on the type of testing (urine or blood), and argument on whether that, or any, testing demonstrates "intoxication" or only "presence." There may be discussion of the intent and meaning of the workers' compensation statute that says benefits will be reduced when such a test is positive. And, potentially argument about the perceived conflict between benefit reduction and use of substances off-the-job.

Ms. Lee is quoted by Channel 7 as "frustrated" because her widow benefits have been decreased "because he smoked a legal substance." Of course, the Colorado Supreme Court has already cleared up that question. Despite what you may hear from conference presenters, marijuana is not "a legal substance." That Channel 7 provides no perspective on that fact is curious in a general sense, and more so in that this is billed as an "investigative" story. That Channel 7 leads its coverage with the "legal marijuana use" headline suggests either a lack of investigation by the station, or that the reporting is instead tending toward advocacy of one perspective without mention of others. 

The station interviewed "an administrative law judge with Colorado’s Department of Labor," John Sandberg. He stated "as it stands now, with a positive test result, an employer has the right to reduce those benefits." Judge Sandberg conceded that reduction of benefits in workers' compensation could be viewed as contradictory to Colorado's "legalized marijuana," and opined that is "a good social issue," one for "the general assembly." The interview is edited; if the judge pointed out the fact that the Colorado Supreme Court has clarified that pot is not legal, that was not included in the story.  

In the end, the workplace can be dangerous. That is the reason for workers' compensation to begin with. Workers should be able to engage in their trade or profession without fear of intoxicated or impaired co-workers. It is doubtful that anyone would seriously argue that allowing workers to drink or use drugs on-the-job is appropriate. The reporting ignores this parallel: alcohol is in fact "legal," alcohol is a drug, and a worker who tests positive for alcohol may see denial or reduction of benefits in workers' compensation. Despite the view reported by Channel 7, the legality of weed may not be the critical point.  

The complexity with marijuana may instead be in whether "presence" or "intoxication" is the issue. Dealing with the fact that marijuana's presence can be detected for many days renders this topic potentially difficult in its own right, and different from substances like alcohol and other drugs with which science supports presence equaling impairment. But, the fact that Colorado law has equated a level or presence (5ng/ml) with impairment may be critical if the levels reported in the Channel 7 video (41ng/ml) are accurate (eight times the presumptive threshold). 

Despite that distinction, it appears that generally the "presence" of drugs at the time of an accident can result in denial or reduction of workers' compensation, perhaps regardless of "impairment." The various laws cited by Lexis seem to support this conclusion is possible in a variety of states. This seems true of alcohol (legal), cough syrup (legal), prescription medication (legal) or pot (not legal, anywhere in America, despite what ill-informed conference pundits tell you). 

Awareness is a potential factor. Channel 7 asked Ms. Lee how many Colorado workers she though were aware that smoking dope could put "their families at risk?” She opined "I imagine none of them do!” That is lamentable. It is acknowledged that few workers have significant understanding of workers' compensation until an injury or illness occur. Certainly, a greater understanding would be beneficial, but is it a realistic expectation? Perhaps most of us live life believing that "it will never happen to me?"

And, it is possible that awareness is not the issue. It seems likely in 2018 that everyone knows of the penalties for DUI, and yet Florida had 24,334 DUI convictions last year. In Florida, even police officers who know the law have been accused. Of course, some may feign ignorance, like the man who recently claimed he was not "drinking and driving" as he only took sips when the car was not in motion. But, the volume of DUI convictions may suggest that awareness of potential penalties may not necessarily prevent consumption. However, it may be that there is always room for greater awareness? 

The Lee matter is currently scheduled for a hearing before a Colorado "administrative law judge in the coming months." I am confident that the presiding judge will not be Judge Sandberg, who already spoke to the press on-the-record about the law which may be argued in the case. In the end, we will perhaps learn if "presence" or "intoxication" is the standard in Colorado. If intoxication is the issue, we may learn about the science behind thresholds like the 5ng/ml driving presumption which the news reports did not mention. 

We will see if the workers' compensation system upholds the statutory reduction of benefits, either because of that law and despite the decriminalization, or concludes that the right to smoke pot preempts the workers' compensation law. It is also possible that the Colorado workers' compensation system will address the continuing misconception that marijuana is legal.


David Langham is the Florida Deputy Chief Judge of Compensation Claims. He blogs weekly regarding system issues, regulations and decisions. He has published many articles and delivered more than 1,000 professional speeches.




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    About The Author

    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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