Marijuana Brownies and Collecting Workers’ Compensation Benefits: The Nevada Supreme Court Examines the Connection

Volume 2, Issue 13
September 24, 2003

For the first time, the Nevada Supreme Court has ruled on the level of proof needed to rebut the presumption that a worker's use of an illegal drug was the true cause of his or her workplace injury, thereby serving as a basis to deny workers' compensation benefits. The case involved an electrician working at a construction site who fell from an eight-foot ladder injuring his head, wrists, and shoulder. The employee's post-injury drug test was positive for marijuana. In response, the employee claimed that he "accidentally" ate marijuana-laced brownies the week before his injury. According to Nevada's workers' compensation laws, any amount of a controlled substance in an employee's system creates a rebuttable presumption that the controlled substance was the proximate cause of the employee's injuries. NRS 616C.230(1)(d).

The Construction Industry Workers' Compensation Group argued on behalf of its member employer, Mohave Electric, that in order for an employee to overcome the presumption that marijuana use was the cause of the injury, the employee should be required to provide testimony from an expert medical professional that the presence of a controlled substance was not the cause of the employee's workplace injury. The Nevada Supreme Court rejected the argument. Instead, it held that the employee's sworn testimony that he suffered no effects from the marijuana the day of the injury and that he was not a frequent drug user, combined with his supervisor's testimony that the employee appeared no different from any other time during his employment and the initial emergency room report indicating there was no evidence the employee was under the influence of a controlled substance, was sufficient to overcome the legal presumption that the employee's drug use was the cause of his accident. Thus, the employee was found to be entitled to workers' compensation benefits.

This case is important to employers for several reasons. First, it provides clarification as to the level of proof an employee needs to offer to overcome the legal presumption that the presence of a controlled substance was the cause of his workplace injury. Second, because an employee can overcome the legal presumption by the testimony of non-expert witnesses, employers and their workers' compensation third party administrators must be ready to offer medical evidence of the effects of drug use. Third, the case demonstrates the need for supervisors, of all levels, to be trained on how to correctly identify drug use.

Construction Indus. Workers' Compensation Group v. Chalue, 119 Nev. Adv. Op. No. 37 (Aug. 21, 2003).

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