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Employers are entitled to a presumption that an employee injured at work, who tests positive for marijuana or other drug use, was impaired prior to the injury and that the employee's impairment was the proximate cause of the injury, under the provisions of the Tennessee Drug Free Workplace Act, Tenn. Code Ann. § 50-9-106(a)(5). The presumption is rebuttable, however, not a guarantee that employers can always avoid liability under workers' compensation laws simply because of an employee's recent drug use. A recent decision by the Tennessee Supreme Court underlines the fact that the cause of a work injury must always be evaluated, that the facts leading up to the injury may be sufficient to persuade a court that the presumption has been rebutted and the injured worker is entitled to worker's compensation benefits. The new decision should also encourage employers to take a fresh look at their policies, enforce their Drug Free Workplace programs and occasionally conduct random drug tests.

In Interstate Mechanical Contractors, Inc. v. Billy McIntosh, decided on June 29, 2007, the employee, McIntosh's hand was injured while demonstrating a machine to a new employee. Without noticing that McIntosh's hand was near the rollers on a metal bending machine, the new employee turned on the machine, which caught and crushed McIntosh's hand. McIntosh was rushed to the hospital for treatment and underwent a drug screen, which indicated that he had an extremely high level of THC in his bloodstream. McIntosh admitted that he had smoked marijuana for the week leading up to the day of the accident, but denied that he was impaired or had used marijuana on the day of the injury.

A medical toxicologist testified that McIntosh's THC level would have impaired his reaction time. Testimony of McIntosh's co-workers, however, told a different story. According to McIntosh's supervisor and the new trainee-employee, McIntosh worked steadily from 7:00 a.m. until the accident at 2:30 p.m., that they did not observe any evidence that McIntosh was under the influence of any substance and, most importantly, that if anyone had a hand on the rollers when they were engaged, injury was certain because there was not time to react. Further, that even after his hand was caught, it was McIntosh, not the trainee, who turned off the machine and disengaged the rollers.

The trial court found that, although McIntosh's THC level would have impaired his reaction response, there was no time for even an unimpaired employee to react once the machine was started by an inexperienced employee. McIntosh's THC level was determined to be a contributing cause, but not the proximate, or legal, cause of his injury, and he was awarded 90% permanent partial disability to his left hand.

The Supreme Court granted permission to appeal solely because it had never decided a case involving the presumption afforded employers by the Drug-Free Workplace Act. Emphasizing that the Act provides a rebuttable presumption, the Supreme Court analyzed the meaning of "proximate cause," as "'a cause that produced the result in continuous sequence and without which it would not have occurred.'" (Citations omitted.) In this case, the "continuous sequence" leading up to McIntosh's accident was the action of the new employee who turned on the power roller machine without first checking with McIntosh. But for that action, the accident would not have occurred. Determining that the trial court's decision as to McIntosh's and his co-workers' credibility should remain undisturbed, the Supreme Court also found that the trial court had also properly applied the statutory presumption that illegal drug use was the proximate cause of the injury had been rebutted by ample evidence and affirmed the award.

The Supreme Court's decision in this case does not weaken the statutory protection offered to employers under the Drug-Free Workplace Act. The presumption that an employee who is injured while under the influence of an illegal substance was the cause of his injury remains intact. Nevertheless, employers would do well to renew their familiarity with the Drug-Free Workplace Act, review current policies and consider whether random drug testing should be more frequently conducted. Certainly random drug testing can not only reduce the likelihood of workplace injuries but can be a deterrent to drug use, too.

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