I had an injured worker recently call me after he hurt his back at work.  The issue was that he had smoked pot over the weekend before the accident and failed a drug test after the accident.  The work comp insurance adjuster told him that he was ineligible for benefits because of the failed test and there was nothing he could do. He wanted to know if this is true.

The quick answer is that it’s not true.  As long as you can show you weren’t impaired when you got hurt, you should win.

This happened in a recent case involving a laborer who worked as part of a pile driver crew.  He was marking beams at a work site and his superintendent told him to move because a backhoe was being operated near by.  Eventually a beam was knocked on to his foot by the backhoe.  He was taken to the hospital and failed a drug screen.  X-rays showed a serious foot fracture.

At trial he testified that he smoked marijuana at a party about a week before the accident and was taking opioids for sleep anxiety and back pain.  He provided prescriptions for those medications.  His foreman testified that taking those meds was not a violation of company policy and that he did not appear to be under the influence of drugs when he was working.

The Arbitrator found that it was a compensable case because there was no proof he was inebriated when he got hurt.  That makes sense as many people smoke pot in their free time and take medications as prescribed by doctors.

More importantly, the Arbitrator also found that the drug test was not admissible.  The insurance company attorney offered no proof that the test had been performed by an accredited or certified testing laboratory or that testing was performed in a manner so as to prevent sample contamination.  This is required per the Illinois Workers’ Compensation Act and Rules of the Commission.

This is a strategy that too many attorneys fail to take. Yes the client would have won the case based on his testimony and that of his supervisor, but even without that the test never should have been admitted in the first place.  Too many defense attorneys are lazy and don’t do what’s necessary to meet their burden of proof and the standards of the law.

Bottom line is that while failing a drug test doesn’t help your case, it’s not a death blow either.  If you want to discuss a case that has been denied due to a failed drug test, please call us at any time.