By Shawn Ashley, eCapitol

The Workers’ Compensation Commission will be left to struggle with the issue of medical marijuana intoxication even after receiving answers to several questions from an expert on the issue.

The Physician Advisory Committee to the Workers’ Compensation Commission voted in September to call on Dr. Jason Beaman, chair of psychiatry and behavioral sciences at the Oklahoma State University Center for Health Sciences, to assist them in addressing a series of information requests made by the commission concerning the effects of medical marijuana.

One of those questions dealt with impairment resulting from the drug. “There is current research underway to find a reliable way to determine impairment,” Beaman wrote in response to the committee’s questions, “but there is currently no universal way.”

Beaman also noted there is no universally accepted standard for alcohol intoxication with legal limits ranging from 0.02 percent to 0.08 percent blood alcohol content (BAC). “Alcohol is impairing at levels below 0.08,” he noted. “This is why you can get a DWI (driving while intoxicated). “So even if Oklahoma set a ‘legal limit’, it would still be likely that impairment and safety issueswould happen even below the limit,” Beaman wrote.

Physicians Advisory Committee Chair Dr. William Gillock asked how the issue had beenaddressed legislatively, specifically in HB2612, the so-called Unity Bill. Commissioner Jordan Russell said the bill did not address intoxication by blood or metabolite level. “The tests to gauge current intoxication or impairment are not commonly reliable,” he said. That, Russell added, will make the information provided by Beaman helpful when the commissiondeals with workers’ compensation claims that involve possible intoxication in the workplace.

The commission dealt with one such case where a worker was injured on the job and tested positive for marijuana in 2017. An administrative law judge approved the worker’s compensation claim, but the full commission reversed it, calling the worker’s claim that he was not affected by the marijuana he admitted to smoking the night before at the time of the accident “self-serving.” The worker appealed the commission’s decision to the Oklahoma Court of Civil appeals. The court ruled Nov. 16 in the worker’s favor.

“The critical focus is not whether an intoxicating substance was present in the worker’s system, but rather whether there was a causal connection between the accident and a state of intoxication, from whatever source,” the court wrote.

The ruling, Commissioner Megan Tilly said, effectively eliminates employers’ refutable presumption that marijuana intoxication had contributed to a worker’s injury. “As a practical defense, it would pretty much be extinct,” Tilly said.

Russell noted there are other factors that can be considered in a work comp claim to address the intoxication issue, such as coworker testimony and the worker’s behavior. “Did they,” for
example, “disregard safety practices they normally follow?” he said. That would still make it difficult to establish that a worker was intoxicated and that was the cause of their injury, Gillock suggested.

The question also will be whether it was the worker’s intoxication that caused the injury, Russell said, using the cartoon character Wylie Coyote as an example. “If a safe drops out of the sky and lands on someone’s head, their intoxication was not the cause of the injury,” he said. Russell also noted he had not seen a physician’s analysis of a positive drug test in any cases that have come before the commission. That means, he said, the commissioners only see numbers that indicate someone had smoked marijuana and not whether they were intoxicated.

Beaman’s report says, “Evidence suggest recent smoking (of marijuana) is associated with substantial driving impairment, particularly in occasional smokers, with implications for work in safety-sensitive positions or operating means of transportation, including airplanes. Complex human/machine performance can be impaired as long as 24 hours after smoking a moderate does of cannabis and the user may be unaware of the drug’ influence.”Additionally, Beaman noted, “Recently abstinent cannabis users (7 hours to 20 days) may experience¬† impairment in attention, concentration, inhibition and impulsivity during the period in which THC and its metabolites are eliminated.

The committee voted to forward Beaman’s responses to the commission for its consideration and use.

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