Workers Comp and Drug Use

A worker uses questionable judgment while using heavy equipment. He’s seriously injured, and a test shows he used illegal drugs. The employee applies for workers’ comp. Does he get benefits?

Here’s what happened:

Michael Wiehe was an employee of Kissick Construction Co. in Kansas. The company had been hired as part of a highway-widening project.

Wiehe was operating a roller which leveled and compacted dirt before asphalt was laid on top. He attempted to break apart a large pile of dirt when the roller tipped over. Wiehe was thrown from the machine. The roller had a seat belt, but Wiehe wasn’t wearing it.

He suffered numerous injuries, including severe ones to his pelvis.

A drug test was performed on Wiehe at the hospital. He had a level of marijuana which was more than four times the amount needed to establish a conclusive presumption of impairment under Kansas law.

Wiehe admitted that he had used both methamphetamine and marijuana the day before he was injured. However, he said he was clearheaded on the day of the incident.

The Workers’ Compensation Board awarded benefits to Wiehe. It said the impairment exception didn’t apply in this case because there wasn’t enough evidence to show that Wiehe had behaved erratically or unusually before the incident. His employer appealed.

To show that Wiehe was impaired, a company foreman testified that he’d noticed Wiehe acting “a little goofy” before the incident, bobbing and weaving his head.

An experienced operating engineer also testified that Wiehe’s attempt to flatten a mound of dirt that was too large showed an extreme lack of judgment.

A toxicologist told the court that a person who is impaired by marijuana would function normally until something unexpected is placed in his or her path. The toxicologist said Wiehe might have carried out his job just fine that day if the large lump of dirt hadn’t been there.

The appeals court overturned the decision of the Workers’ Compensation Board. Wiehe would not get workers’ comp benefits. It said the company had proven that his impairment caused him to operate the roller in a manner that demonstrated extremely poor judgment.

Wiehe v. Kissick Construction Co., Court of Appeals of Kansas, No. 102,669, 5/6/10

Reposted from Safety News Alert