SECOND QUARTER 2019
By: Stephen Murray
In Nebraska, how should employers handle employees with pre-existing medical conditions who are using legally prescribed medical marijuana? Second, how should an insurer handle an injured employee who has been legally prescribed medical marijuana for treatment within a workers’ compensation claim?
Both medicinal and recreational use of marijuana is currently prohibited under Nebraska state law. Even CBD oil is illegal in Nebraska. As such, insurance carriers are not responsible for paying for such treatments as it pertains to treatment for work related injuries. Government Pete Ricketts has opposed legislative bill proposals surrounding the topic in the past, stating studies required by the FDA need to be done prior to his support. No bills have since received any traction in the unicameral. Possession of marijuana up to one ounce is not a crime subject to arrest on first offense.
In terms of marijuana usage in the workplace, marijuana is generally treated like alcohol in the workplace for purposes of deciding whether an injury should be considered compensable or not. Nebraska Revised Statue 48-127 states “[i]f the employee is injured by reason of his or her intentional willful negligence, or by reason of being in a state of intoxication, neither he or he nor his or her beneficiaries shall receive any compensation under the Nebraska Workers’ Compensation Act. The burden of proof in proving intoxication as a defense is on the employer. Johnson v. Hahn Bros. Constr. Inc., 188 Neb. 252, 196 N.W.2d 109 (1972). What Johnson establishes is a requirement by employers to show that not only was an employee intoxicated at the time of his or her accident, but that the intoxication was the cause or at least a contributing factor in causing the underlying injury. This is not easy to do, however generally speaking; the courts in Nebraska are more aggressive against drug use than they are in Colorado or Iowa.
There is very little case law surrounding the topic of marijuana, although it is treated the same way as alcohol for purposes of the intoxication defense. In James McDaniel v. Western Sugar Co., 1997 WL 1424474 (Neb. Work. Comp. Ct.), the plaintiff was in the employ of the defendant and suffered injuries to his left foot from a burn in the course and scope of his work duties. The defendant denied the claim based on the intoxication defense. The plaintiff tested positive for THC. The plaintiff testified that he indeed did use marijuana, however, the plaintiff testified the ingestion of marijuana occurred within the 24-hour period after the accident, but before reporting it to the defendant the following day. Defendant’s used expert witness Dr. Henry Nipper, who stated that “infinitesimal amounts of certain chemicals can have a profound effect on the body. Indeed, according to scientific literature, the blood level of THC required to produce a ‘high’ is 50 to 70 ng/mL.” The drug test on the plaintiff was 257 ng/mL. Further, according to Dr. Nipper, “smoking marijuana induces psychomimetic effects such as mood alteration, sensory perception, cognition, sensorium, motor coordination and self perception which would cause reduced performance” involving those aforementioned functions. Despite this, the court found the defendant failed to prove by a preponderance of the evidence that the plaintiff was intoxicated at the time of the accident.
In Kamarad v. DRK, Inc., a Nebraska appellate court affirmed the dismissal of an employee’s workers compensation claim after finding that the employee was intoxicated at the time of his accident and that his intoxication was a proximate cause of the accident and resulting injuries. The employee worked at a sports pub, sometimes in the kitchen, sometimes in the bar. One evening, while he helped customers and his co-workers, he consumed a number of shots. He was injured in a fall and taken to the hospital, where his blood alcohol level was 0.221. A medical expert testified that a person with that much alcohol in his system might exhibit a host of behaviors, including loss of critical judgment, impairment of perception, memory and comprehension, impaired balance, and impairment of swallowing sufficient to cause choking. In the employee’s claim, he contended that he choked on a piece of food that caused him to fall, hit his head, and break his tailbone. The appellate court held that all this was sufficient to support a finding that the employee was intoxicated at the time of his fall and that the fall was caused by his intoxication.
Although the above case law does not address marijuana, the appellate court in Nebraska has opened the door to the potential application of the intoxication defense in the marijuana context. The Nebraska case law is clear that, for a workers compensation claim to be denied based on the intoxication defense, whether that intoxication was caused by alcohol or THC, a preponderance of the evidence must support the conclusion that (1) the employee intoxicated or high during the time of the injury and (2)the intoxication proximately caused the injury. This is a difficult standard for an employer to meet but, in the right case, the defense can defeat the injury claim.