nonelastic belated: Colorado Workers Comp Problem For Employees Who Smoke Pot ...

Thursday, December 20, 2012

Colorado Workers Comp Problem For Employees Who Smoke Pot ...

Under current Colorado law, the Workers Compensation Act (?ACT?) specifically states there will be a 50% reduction in benefits for employees injured on the job using a controlled substance under C.R.S 18-18-102 (5). These monetary benefits are typically provided from workers compensation insurance policies paid to injured workers for a variety of reasons including disability, medical, or lump sum benefits as defined by the Act.

For example, let?s assume Jim works at a general construction company for the past 3 years. He smokes marijuana over a week ago and shows up for work on Monday to do his job. Jim trips over some bricks? and falls to ground injuring his neck and back. The construction company John works for has a written policy for mandatory drug testing after an injury occurs. John fails the drug test by testing positive for Delta-9-Tetrahydrocannabinol (?THC?). However, he wasn?t high while at work. His failed drug test was due to trace amounts of THC in his blood system from the weekend of smoking pot. John?s injury costs the insurance company close to $50,000. However, the insurance carrier decides to reduce their payments by $25,000 citing the ACT and his positive test result.

Is Marijuana No Longer A Controlled Substance?

Based on the fact marijuana is legal today in Colorado, should it be removed from the definition of a controlled substance under Colorado Law? Pursuant to C.R.S. 18-18-102 (5), the definition states ?Controlled substance? means a drug, substance, or immediate precursor included in schedules I through V of part 2 of this article, including cocaine, marijuana, and marijuana concentrate, any synthetic cannabinoid, and salvia divinorum.

Should Jim?s workers compensation benefits be reduced by 50% under current Colorado law? Possibly and possibly not. But, it could be argued that marijuana is no longer illegal in Colorado and Jim is entitled to full benefits despite no modification or amendment to the ACT and removal of marijuana from being a controlled substance.

Colorado Marijuana Task Force Assigned To Tackle This Problem

Clearly, this is a complicated topic and problem assigned to the marijuana task force who will need to address this issue and many others over the next several months.? Their findings will be presented to Governor Hickenlooper.? Today, we?re in a legal gray area as rules and regulations have yet to be promulgated and the outcome will remain to be seen. It?s important for the task force to address this issue thoroughly and consider the current and long term implications of their recommendations for everyone in Colorado.

Colorado Workers Compensation Act?Use Of A Controlled Substance

8-42-112.5. Limitation on payments ? use of controlled substances. (1) Nonmedical benefits otherwise payable to an injured worker are reduced fifty percent where the injury results from the presence in the worker?s system, during working hours, of controlled substances, as defined in section 18-18-102 (5), C.R.S., that are not medically prescribed or of a blood alcohol level at or above 0.10 percent, or at or above an applicable lower level as set forth by federal statute or regulation, as evidenced by a forensic drug or alcohol test conducted by a medical facility or laboratory licensed or certified to conduct such tests. A duplicate sample from any test conducted must be preserved and made available to the worker for purposes of a second test to be conducted at the worker?s expense. If the test indicates the presence of such substances or of alcohol at such level, it is presumed that the employee was intoxicated and that the injury was due to the intoxication. This presumption may be overcome by clear and convincing evidence.