An Illinois workers’ compensation case can be strongly affected by a positive drug test, and for obvious reasons. When a person is under the influence of any drug, performance can be affected in the areas of reaction time, judgment, coordination, vision, and more. When a person is under the influence of an illegal or controlled substance, the situation stands an even greater chance of creating a problem, both in physical terms as well as the rules and regulations of the workplace and society. “Drugs are a bet with your mind,” Jim Morrison once said. In a workers’ comp case, drugs are also a dangerous bet with your livelihood on the line.
The recent case of Terence Ek v. Ryan Inc. Central is an interesting one to study. Let’s take a look at the facts of the case, and the specific laws for Cannabis or marijuana under the Illinois Workers’ Compensation Act:
- Mr. Ek was a journeyman heavy equipment operator.
- He was employed as a seasonal employee for Ryan Inc. Central for 7 years.
- On September 7, 2013, he was operating a Caterpillar 627g Scraper, which is a wheeled scraper designed to move material from one area to another. The operator seat is an “air-assisted, comfort ride seat.”
- While operating the machine to pick up dirt and clay and move it to a fill area, he hit a bump. He testified that after he hit the bump, he was “launched” up and down in his seat, and his seatbelt kept him “locked.”
- Mr. Ek also claimed the seat “bottomed out,” and he then immediately felt pain in his back, and his legs experienced numbness.
- After the accident, Mr. Ek claimed that he emerged from the vehicle, tried to stretch out, then laid down. There were no witnesses to this.
- The work site foreman drove Mr. Ek to an immediate care center, but Mr. Ek was not able to get out of the foreman’s truck, forcing them to call an ambulance, which took him to Sherman Hospital.
- Mr. Dusty Twite, the site’s superintendent, testified on behalf of the employer. About 3 hours after the accident, Mr. Twite went to the specific area and took various pictures. He claimed to not see anything there that would have caused the vehicle to jump. Three of the pictures he claimed showed the area where he had found Mr. Ek and the vehicle; however, Mr. Ek testified that none of the pictures showed the area where he had been injured. Mr. Twite later clarified that he did not have any knowledge about where the actual accident took place, the pictures did not show the whole area where the worker may have been injured, and not any of the pictures showed the place where he had found Mr. Ek and the vehicle because someone had moved the vehicle before Mr. Twite took the pictures.
- Mr. Steven Pierce, the mechanic for Ryan Inc. Central, also testified for the employer. He had been operating and repairing Caterpillar 627g Scrapers for 10 years, since they were first put on the market. On September 9, 2013, he performed an inspection of the Cat 627g vehicle from this accident. He testified that he found nothing wrong with the seat, and he even tested the vehicle by running it harder than a driver normally would, as part of his attempt to recreate the “bottoming out” of the seat. He was not able to bottom out the seat, and he determined the vehicle was operating normally.
- About 4 hours after the accident, at 5:10 pm, Mr. Ek underwent drug testing. This drug test was per his union’s contract with the employer. The test revealed a positive result for the presence of marijuana metabolites at a value greater than 300 ng/ml.
- Hours later, at 10:35 pm at University of Illinois Hospital, another drug test was performed. This test was not requested by the employer. The test revealed the presence of cannabinoids at a value greater than 50 ng/ml.
- On September 11, 2013, Mr. Ek was at Sherman Hospital on morphine when the adjuster actually took a statement from him, and he denied using any illicit street drugs. Later, Mr. Ek did not remember giving any statement because of the nature of the hospital drugs at the time.
- Mr. Ek gave direct testimony in which he denied ever having tested positive for a controlled substance in his past. However, records from Sherman Hospital showed that he had a toxicology screen on April 16, 2013 in which he tested positive for THC.
- Mr. Ek testified that, while he was not working for two weeks in August of 2013, he smoked marijuana three times per day every day. He claimed that on September 4, 2013, after being notified that he was to return to work the next day, he stopped smoking, and therefore did not smoke any marijuana after September 4, 2013.
- Mr. Ek’s attorney hired Dr. James O’Donnell, a pharmacologist, as its IME (independent medical exam) doctor for a deposition set on March 6, 2014. Dr. O’Donnell testified that Mr. Ek was a chronic marijuana user, and that marijuana metabolites would stay in the system of such a user for a relatively long period after drug use. Further, Dr. O’Donnell pointed out that the first drug test only tested for marijuana metabolites, and not Delta 9 THC, which is the ingredient in marijuana that is linked to “the high.” Therefore, Dr. O’Donnell asserted that this was not competent evidence in support of the theory that Mr. Ek was intoxicated on the date of the accident.
- Ryan Inc. Central hired Dr. Jerrold Blair Leikin, a toxicologist and physician, as its IME (independent medical exam) doctor for a deposition set on April 21, 2014. Dr. Leikin testified that if Mr. Ek had actually stopped smoking at the claimed date, then Mr. Ek would not have had the level of marijuana metabolites in his system that was shown by the two drug tests. Dr. Leikin claimed that 300 ng/ml was an “enormous” level, actually at least twenty times greater than the cut-off level of 15 ng/ml, and in support of marijuana use within hours of the test. Dr. Leikin gave the opinion that at the time of the accident, Mr. Ek was impaired due to marijuana use, and was at an increased risk for an accident due to marijuana’s effects on coordination, judgment, reaction time, and perceptual and visual abnormalities.
- Mr. Ek denied being aware of the specifics of his employer’s “uniform drug / alcohol abuse program” in his union contract, but he did admit to “a general understanding” against the use of drugs and alcohol on the job.
- In Section 11 of the Illinois Workers’ Compensation Act, it states: “No compensation shall be payable if: (i) The employee’s intoxication is the proximate cause of the employee’s accidental injuries…if at the time of the accidental injuries…there is any evidence of impairment due to the use of unlawful or unauthorized use of (i) cannabis as defined by the Cannabis Control Act…then there shall be a rebuttable presumption the employee was intoxicated and that the intoxication was the proximate cause of the employee’s injury. The employee may overcome the rebuttable presumption by the preponderance of the admissible evidence that the intoxication was not the sole proximate cause or proximate cause of the accident injury.” In other words, in this situation, the employee basically has to prove that the marijuana use was not the main cause of the work injury.
- On August 11, 2014, the Arbitrator found in favor of the employer, mainly because he determined that the employer’s doctor, Dr. Leikin, was more persuasive than the employee’s doctor, Dr. O’Donnell, at least in part due to Dr. Leikin’s strong credentials, such as being a professor of Pharmacology, a certified medical review officer, and having a focus on medical toxicology. Dr. O’Donnell, on the other hand, had a pharmacology degree and a bachelor of science degree. The arbitrator concluded that the injured worker did not show that the intoxication was not the sole proximate cause or proximate cause of the work injury. Even though the arbitrator had “no doubt that something happened, on the job, that caused a significant injury,” that did not matter, because of the evidence that marijuana was present in the worker’s system at the time of injury, and the worker failed to prove that the drug use was not the main reason for the accident.
- On August 25, 2015, the Commission affirmed and adopted the decision of the Arbitrator.
With this blog, we like to focus primarily on winning cases, to demonstrate all the different ways an injured worker can win his or her case. This time, there was not a happy ending, but sometimes it’s important to also discuss these situations and study exactly what went wrong in the case. Aside from this obviously being another warning about the dangers of drug use, this case shows the importance of the credentials of the medical experts used in a workers’ compensation case. In other words, many times, a case comes down to the treating doctor versus the employer’s IME doctor, or the petitioner’s IME doctor versus the employer’s IME doctor, as in this case. In such situations, it is extremely important that your attorney has knowledge of the reputations of doctors in the field. On an obvious level, anyone can see a doctor’s education and experience in a website bio, and use that information to select the best candidate. Beyond that, an experienced workers’ comp lawyer has an advantage because he or she can know more about the reputations of various doctors in the workers’ comp system, such as among lawyers, arbitrators, commissioners, and so forth. That key knowledge of an experienced attorney can make or break a case. It is impossible to say if this case could have been won if handled differently; however, it is undeniable, based on the arbitrator’s written decision, that the persuasiveness and reputations of the medical experts was of vital importance to this injured worker’s case.