Check Out Our Podcast: The Verdict
You got injured at work, but you failed a drug test. Does that mean your workers’ comp case is over? Not necessarily.
In this episode of The Verdict, lead workers’ comp attorney Brian Groesser joins Clarke to unpack one of the most misunderstood defenses in workers’ compensation law: intoxication. We’ll explain why a positive drug or alcohol test doesn’t automatically disqualify you from benefits, and what the insurance company still has to prove.
You’ll learn the difference between simply having THC in your system and being legally impaired, why a failed drug test is not a failed claim, and how causation is the key to whether your case stands or falls. Real-world examples, including construction site accidents and roof collapses, highlight how these cases play out in practice.
Here’s what we discuss in this episode:
🧪 Failed drug screen ≠ failed claim
🌿 THC presence doesn’t equal impairment
📉 The injury must be caused by the intoxication to deny a claim
🏗️ Real case: roof collapse, positive THC test, but still potentially compensable
Workers comp, fault, injuries, employers, insurance, workers comp claims
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SPEAKERS
Clarke Speaks, Brian Groesser
Clarke Speaks 00:00
I'm Clark speaks, the catastrophic injury lawyer. Welcome to the verdict. Welcome back to the verdict. I'm Clark speaks. This is Brian. Grocer, Brian, you mentioned to me earlier in the last segment that fault doesn't matter in a worker's compensation claim. Let me ask you this. What about impairment? If a person is on the job and they're impaired, they've used a controlled substance, controlled substance alcohol, and that may have impacted their injury. How does that fit into this analysis?
Brian Groesser 00:28
There still has to be this. We talked about that second component, the arising out of this is where an intoxication defense comes from. Is that it doesn't arise out of the employment. Because you were intoxicated, that's the reason that you got you were injured. An employer has to prove it, right. This is an affirmative defense. If they're going to raise intoxication, it's an affirmative defense, and what that means is that they have to prove it. They're the ones that have to show two things, one, that you were intoxicated. That's not as easy as it seems, right? Yes, from an alcohol standpoint, probably fairly easy. You could do a BAC level and see what it is, and if you are by definition intoxicated. Then we move on to step two, controlled substances. If you were taking a prescription, a prescribed medication, or you were taking some sort of controlled substance, and you didn't have a prescription for it, let's say that you were popping up, popping Oxycontin, and you don't have a prescription for it, that's considered as a controlled substance, and if it was in your system, it could be a definition of intoxication, just by itself, illegal drugs like cocaine and those types of things. If it's in your system, you're automatically assumed to be intoxicated under some of those circumstances where it becomes increasingly difficult, is in a situation that we see much more frequently at this point is marijuana, because we the science and the law aren't really caught up with each other. And you know you could, especially with the ability to get CBD gummies or the oils and everything else that you can get over the counter perfectly legal to take them the THC can still be in your system, and it's very hard. You may have taken a gummy two weeks ago, and the THC is still in your system, and so you fail a drug test, but with marijuana, oftentimes, the drug tests don't show the level, and that's what a toxicologist needs to know, is what the level of THC is, not that it's present, but what's level, because there's a big difference between taking a gummy over the counter two weeks ago and smoking a bowl right before you went out onto the job site that morning, right there's a big difference. So that's one aspect of it's the intoxication side of it was that were they actually intoxicated? And that's not necessarily easy for the carrier to approve. The second component of it is the causal relation. Did the intoxication cause the injury to take place? Right? If it did, it's a viable defense, and they can deny your claim. But if it didn't, didn't, you could be drunk as a skunk on a let's just say that you're a construction worker and you're out on a construction site, and you could be drunk as a skunk. You pounded 240s before you showed up to work, and everybody around you is like, Man, that guy is drunk. Is he's got bloodshot eyes, and he smells like alcohol. Bob the builders behind you, and he's not paying attention, and he's got a big piece of of lumber, and he turns around to talk to somebody, and that piece of lumber hits you in the back of the head. It wouldn't matter if you were stone cold sober or drunk as a skunk. It wouldn't have prevented you from being hit in the back of the head, right? So just the fact that you were intoxicated doesn't mean that you don't have a compensable claim. Your intoxication has to actually cause the injury. With Bob the Builder, it didn't you had no clue he was behind you. Your intoxication didn't like make you not look at him or anything like that. He just happened to turn around and he was around, and he was probably negligent, not looking out for his surroundings, and he hits you with a two by four on accident. It happens. Whereas, if you're on the roof and you're intoxicated and you fall off the roof, and there was nothing up there that caused you to fall there wasn't any type of slippery substance or, you know, you didn't trip over anything. You just happened to fall off because you lost your balance. Toxicologist probably going to say, with his level of alcohol that was in his system, it is more likely than not that that is what caused him to fall off the roof. If that's the case, your case is likely going to be denied, and likely remain denied throughout the litigation process.
Clarke Speaks 04:15
It just strikes me as how much opportunity there is for argument on either side of any of these issues. And so, for example, I remember a case where we had a long time ago where a person was roofing, and was a great it was very good at his job. Was very well respected among his crew, and they asked him to do a a section of the of the roof, and other people were afraid to do that because they weren't sure the roof was stable. And so he did it, because he was just that guy, and when he got out there to do this thing on the on the roof, the roof collapsed, and he was injured. And then the insurance company went back and argued, hey, wait a minute, you're, you're, you're. You were you were intoxicated, because they did a test and determined that he had THC in his system, and then Inc. And then he communicated with them without the presence of an attorney, and said, Yeah, well, I had smoked, you know, the day before, or earlier that day, or something along those lines. And then they tried to argue, well, that that you were impaired, and that your impairment contributed to this accident, you know, and it just strikes me as how careful people need to be through those processes of answering those questions and addressing those conversations with providers and their employers and insurance companies and the adjuster during those early stages of a workers compensation claim? Well, it's
Brian Groesser 05:42
important too. Like you mentioned, the early stages, that is often when a drug screen takes place. Right? Is right after the accident. A lot of times you're going to be asked to take a drug screen. The important thing for you as listener to know is that a failed drug screen does not mean it's a failed claim. So just because you have a failed drug screen does not mean that you don't have a claim, because it's an affirmative defense that the carrier has to prove, they have to prove that you were intoxicated, and they have to prove that the intoxication caused the injury. So once again, I reiterate, if you have a failed drug test, it is not a failed claim.
Clarke Speaks 06:16
What it strikes me as is how important it is to have the right attorney helping you through this process, because, as you can see, there are some dangerous, dangerous issues that come up in all of these different scenarios. Thank you for talking to me about this. I have more questions I want to ask you in the next segment. Thank you. Thanks for joining us. Don't forget to subscribe and follow us to stay up to date with our weekly episodes. We'll see you next time you.
SPEAKERS
Clarke Speaks, Brian Groesser
Clarke Speaks 00:00
I'm Clark speaks, the catastrophic injury lawyer. Welcome to the verdict. Welcome back to the verdict. I'm Clark speaks. This is Brian. Grocer, Brian, you mentioned to me earlier in the last segment that fault doesn't matter in a worker's compensation claim. Let me ask you this. What about impairment? If a person is on the job and they're impaired, they've used a controlled substance, controlled substance alcohol, and that may have impacted their injury. How does that fit into this analysis?
Brian Groesser 00:28
There still has to be this. We talked about that second component, the arising out of this is where an intoxication defense comes from. Is that it doesn't arise out of the employment. Because you were intoxicated, that's the reason that you got you were injured. An employer has to prove it, right. This is an affirmative defense. If they're going to raise intoxication, it's an affirmative defense, and what that means is that they have to prove it. They're the ones that have to show two things, one, that you were intoxicated. That's not as easy as it seems, right? Yes, from an alcohol standpoint, probably fairly easy. You could do a BAC level and see what it is, and if you are by definition intoxicated. Then we move on to step two, controlled substances. If you were taking a prescription, a prescribed medication, or you were taking some sort of controlled substance, and you didn't have a prescription for it, let's say that you were popping up, popping Oxycontin, and you don't have a prescription for it, that's considered as a controlled substance, and if it was in your system, it could be a definition of intoxication, just by itself, illegal drugs like cocaine and those types of things. If it's in your system, you're automatically assumed to be intoxicated under some of those circumstances where it becomes increasingly difficult, is in a situation that we see much more frequently at this point is marijuana, because we the science and the law aren't really caught up with each other. And you know you could, especially with the ability to get CBD gummies or the oils and everything else that you can get over the counter perfectly legal to take them the THC can still be in your system, and it's very hard. You may have taken a gummy two weeks ago, and the THC is still in your system, and so you fail a drug test, but with marijuana, oftentimes, the drug tests don't show the level, and that's what a toxicologist needs to know, is what the level of THC is, not that it's present, but what's level, because there's a big difference between taking a gummy over the counter two weeks ago and smoking a bowl right before you went out onto the job site that morning, right there's a big difference. So that's one aspect of it's the intoxication side of it was that were they actually intoxicated? And that's not necessarily easy for the carrier to approve. The second component of it is the causal relation. Did the intoxication cause the injury to take place? Right? If it did, it's a viable defense, and they can deny your claim. But if it didn't, didn't, you could be drunk as a skunk on a let's just say that you're a construction worker and you're out on a construction site, and you could be drunk as a skunk. You pounded 240s before you showed up to work, and everybody around you is like, Man, that guy is drunk. Is he's got bloodshot eyes, and he smells like alcohol. Bob the builders behind you, and he's not paying attention, and he's got a big piece of of lumber, and he turns around to talk to somebody, and that piece of lumber hits you in the back of the head. It wouldn't matter if you were stone cold sober or drunk as a skunk. It wouldn't have prevented you from being hit in the back of the head, right? So just the fact that you were intoxicated doesn't mean that you don't have a compensable claim. Your intoxication has to actually cause the injury. With Bob the Builder, it didn't you had no clue he was behind you. Your intoxication didn't like make you not look at him or anything like that. He just happened to turn around and he was around, and he was probably negligent, not looking out for his surroundings, and he hits you with a two by four on accident. It happens. Whereas, if you're on the roof and you're intoxicated and you fall off the roof, and there was nothing up there that caused you to fall there wasn't any type of slippery substance or, you know, you didn't trip over anything. You just happened to fall off because you lost your balance. Toxicologist probably going to say, with his level of alcohol that was in his system, it is more likely than not that that is what caused him to fall off the roof. If that's the case, your case is likely going to be denied, and likely remain denied throughout the litigation process.
Clarke Speaks 04:15
It just strikes me as how much opportunity there is for argument on either side of any of these issues. And so, for example, I remember a case where we had a long time ago where a person was roofing, and was a great it was very good at his job. Was very well respected among his crew, and they asked him to do a a section of the of the roof, and other people were afraid to do that because they weren't sure the roof was stable. And so he did it, because he was just that guy, and when he got out there to do this thing on the on the roof, the roof collapsed, and he was injured. And then the insurance company went back and argued, hey, wait a minute, you're, you're, you're. You were you were intoxicated, because they did a test and determined that he had THC in his system, and then Inc. And then he communicated with them without the presence of an attorney, and said, Yeah, well, I had smoked, you know, the day before, or earlier that day, or something along those lines. And then they tried to argue, well, that that you were impaired, and that your impairment contributed to this accident, you know, and it just strikes me as how careful people need to be through those processes of answering those questions and addressing those conversations with providers and their employers and insurance companies and the adjuster during those early stages of a workers compensation claim? Well, it's
Brian Groesser 05:42
important too. Like you mentioned, the early stages, that is often when a drug screen takes place. Right? Is right after the accident. A lot of times you're going to be asked to take a drug screen. The important thing for you as listener to know is that a failed drug screen does not mean it's a failed claim. So just because you have a failed drug screen does not mean that you don't have a claim, because it's an affirmative defense that the carrier has to prove, they have to prove that you were intoxicated, and they have to prove that the intoxication caused the injury. So once again, I reiterate, if you have a failed drug test, it is not a failed claim.
Clarke Speaks 06:16
What it strikes me as is how important it is to have the right attorney helping you through this process, because, as you can see, there are some dangerous, dangerous issues that come up in all of these different scenarios. Thank you for talking to me about this. I have more questions I want to ask you in the next segment. Thank you. Thanks for joining us. Don't forget to subscribe and follow us to stay up to date with our weekly episodes. We'll see you next time you.
