Q: My son was helping a co-worker and was injured on the job. When they took him to the ER he tested positive for marijuana which he said he had smoked the weekend prior to the accident. Now his employer refuses to pay his medical bills or pay him for being off work. Can they do this?
A: Well we know he didn’t have a prescription for marijuana in Alabama.
The Alabama Workers Comp Statute provides that no compensation shall be paid “due to the injured employee being intoxicated” and that includes alcohol or illegal drugs.
It’s hard to say whether employers misunderstand the statute purposefully or whether they simply don’t understand that “no compensation shall be allowed” doesn’t have anything to do with payment of the medical bills.
The first misunderstanding that employers have is that if an employee tests positive for alcohol or illegal drugs, they take the position that they are entirely free from liability for medical bills, temporary total disability (TTD) or permanent partial disability (PPD). The fact is that the employer is still responsible for the medical bills of an employee who tests positive for drugs or alcohol if the employee was injured in the line and scope of their employment.
The second misunderstanding is that the intoxication has to have contributed to the occurrence of the accident. In other words, if the employee can show that the accident occurred without the contribution of any mind altering substance, then this is not a valid defense for the employer.
The defense of intoxication is an affirmative defense. Affirmative defenses are those defenses which must be pled by the defendant and then proven by the defendant.
I don’t know the facts of your son’s case but I do know that the employer has to pay for his medical treatment.
If a good workers compensation attorney looks at the facts of how the accident occurred and believes there is a pretty good chance that if your son really smoked pot a week ago and was by no means still affected, and believes that there is substantial proof of that, such as that he had worked the entire day without a problem and had received instructions from a supervisor who detected no impairment and the instructions had been followed without any sign of intoxication, it may be a case to put before a judge to obtain full benefits. Remember that the only way an attorney gets paid in a worker’s compensation case is if the worker is injured to the extent that the injury results in a permanent impairment. In worker compensation cases in Alabama attorneys are limited to 15% of the amount awarded by the Court or agreed upon by the parties in settlement of the claim.
Buckle up and drive safely.
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