In Montana, the state supreme court upheld a Workers’ Compensation Court ruling that a man who was mauled while feeding the bears at a local tourist attraction is eligible for workers’ compensation benefits.

The claimant filed a claim for injuries sustained during a bear attack that occurred while feeding the bears at Great Bear Adventures. He had admitted to smoking marijuana on the way to work that morning.

In Montana, drug consumption without a proper prescription will preclude an injured worker from collecting benefits if the consumption was the leading cause of the accident, when compared to all other causes. No evidence was presented to the trial court regarding the employee’s level of impairment. The trial court noted that "the [claimant’s] use of marijuana to kick off a day of working around grizzly bears was ill-advised to say the least and mind-boggling stupid to say the most," but noted that grizzly bears are "equal opportunity maulers" without regard to marijuana consumption. The supreme court decided that without evidence of the claimant’s level of impairment, the trial court correctly concluded that marijuana was not the major contributing cause of the employee’s injuries.

My Two Cents:

In Alabama, there is an automatic presumption of legal impairment if the employee fails a drug screen that is compliant with Department of Transportation testing procedures. In the above case, such a test would probably not even be necessary since the employee admitted to smoking on the way to work. Once impairment is established, you must still prove that the impairment was the cause or contributing cause of the accident. In the above case, it may have been helpful to enlist the services of an expert to provide testimony concerning the employee’s level of impairment, how the employee’s impaired judgment could have caused the attack, or how it may have inhibited the employee from avoiding or retreating from the attack.

Ex parte Saad's Healthcare Services, Inc.

In this opinion released on December 5, 2008, the Alabama Supreme Court held that the Alabama Court of Civil Appeals was correct in determining that an employee was not disqualified by the exclusion found in § 25-5-57(a)(4)d from being considered permanently and totally disabled based on her refusal of psychological and psychiatric treatment after she reached MMI. The subject exclusion states: "Any employee whose disability results from an injury or impairment and who shall have refused to undergo physical or vocational rehabilitation ... shall not be deemed permanently and totally disabled." In support of its opinion, the Court explained that because the post-MMI treatment the employee refused was not offered for the purpose of restoring her physical function or her ability to engage in gainful employment, but was instead offered to treat her mental impairments, that treatment was not "physical or vocational rehabilitation" within the meaning of the exclusion found in § 25-5-57(a)(4)d.

Hendricks v. KW Plastics, Inc., --- So.2d ----, 2008 WL 4531577 (Ala.Civ.App. 2008):

An employee took his workers' compensation case to trial without the benefit of an attorney.  Although he proved that he was involved in an otherwise compensable workers' compensation accident, he was unable to prove that he had any permanent impairment or vocational loss.  As such, the trial judge ruled in favor of the employer except that the future medical benefits were ordered to remain open for life.  Summary judgment was also granted in favor of the employer on the employee's retaliatory discharge claim.  the employee missed his appeal deadline for the retaliatory discharge judgment.  His appeal on the workers' compensation claim was remanded to the trial court for a determination that the Order was final and thus appealable.