F&P Principal Andrew Stephenson, will be traveling to Las Vegas next week to speak at the 2017 Risk Management Summit.  The conference will be held October 15 – October 17 at the Cosmopolitan and will focus on the theme of “Unlocking Possibility.”  During the breakout session titled “The Impact of Dash Cameras,” Andrew will discuss how dash cameras affect the claims investigation process and why they are important, providing factual examples.  The Summit opened its doors to small and middle market companies last year to provide “ideas, concepts and products that will facilitate innovation, success and transformation” in the field of risk management and business operations.

For more information about the Summit, please visit the website at https://summit.eservicesco.com.

 

As featured in Behind the Wheel, a quarterly publication of the Maryland Motor Truck Association.

Written by Albert B. Randall, Jr. and  Matthew George Kuspa

Currently, twenty-nine states, including Maryland, have legalized the use of marijuana for medicinal purposes.  Maryland lawmakers first approved of medical marijuana in 2013.  Soon after, lawmakers revamped Maryland’s medical marijuana program by vesting the Maryland Medical Marijuana Cannabis Commission (“MMCC”) with the responsibility of establishing Maryland’s medical marijuana industry.  The MMCC engages in policy-making and oversees licensing and registration measures pertaining to Maryland’s medical marijuana program.

Nevertheless, Maryland’s medical marijuana program has been plagued by repeated delays and challenges to the fairness of its licensing procedures.  In 2016, the MMCC awarded 15 preliminary growing licenses and 15 preliminary processing licenses.  Yet, as of July, only one grower and one dispensary have received final approvals from the MMCC.  If the other applicants are not granted a final license by August 15th, those businesses risk losing an opportunity to be a part of Maryland’s medical marijuana industry.  As for the other two businesses that received approval, Maryland can likely expect to see some of the 9,000 registered patients begin using medical marijuana cards sometime later in 2017.

Despite successful state efforts in legalizing medical marijuana and establishing lucrative industries, marijuana still remains a Schedule I substance under the Controlled Substances Act (“CSA”).  This unresolved tension between federal and state law creates many uncertainties for employers across the country.  Accordingly, jurisdictions take varied approaches on whether employees are entitled to workers’ compensation benefits with regard to on-the-job injuries caused by or treated with medical marijuana.  Furthermore, employers instituting drug-free workplace policies in states that have legalized medical marijuana run the potential risk of encountering state law disability discrimination or wrongful discharge claims from employees using medical marijuana.  Take Garcia v. Tractor Supply Company, for example – a New Mexico U.S. District Court case demonstrating the liability conundrum that faces employers in states that have legalized marijuana.

In Garcia v. Tractor Supply, the employee tested positive for marijuana on an employment drug test due to his medical marijuana use.  Pursuant its drug-free workplace policy, the employer terminated the employee on the basis of the positive test results.  The employee subsequently brought a state law disability discrimination claim against the employer and argued that the employer unlawfully terminated him based on his medical condition.  Fortunately, the court concluded that the employer was not required to accommodate the employee’s medical marijuana use because the CSA preempted New Mexico’s medical marijuana act.

Despite the employer’s victory in Garcia, there is no way to predict the fate of employers in many other jurisdictions, including Maryland, that have yet to analyze the legality of employee discipline for medical marijuana use.  In fact, a recent Massachusetts Supreme Court decision reaffirmed employer concerns about the legal risks associated with enforcing zero-tolerance work policies.  In Barbuto v. Advantage Sales & Marketing, LLC, the court overruled a motion to dismiss and held that a cause of action for disability discrimination could exist against an employer for terminating an employee after testing positive for medical marijuana.  The Massachusetts’s high court rejected the employer’s argument that accommodation of an employee’s medical marijuana use is per se unreasonable because it is illegal under federal law.  Instead, the court reasoned that an exception to the employer’s drug policy to permit the marijuana use was a facially reasonable accommodation given that medical marijuana was the most effective means of treating the employee’s debilitating condition.  The court noted, however, that the employee could still lose on the disability discrimination claim if the employer demonstrated that approval of medical marijuana use would cause undue hardship.  Nevertheless, the Barbuto court’s approach is worth noting as this decision is likely to influence other states.

When it comes to medical marijuana use by drivers with a commercial driver’s license (“CDL”), there is less uncertainty about the governing rules.  Commercially-licensed drivers of commercial motor vehicles (“CMV”) must pass DOT physicals in order to obtain medical cards.  Additionally, CDL drivers of CMVs are subject to DOT drug testing regulations, which explicitly bars the illicit use of Schedule I drugs.  Even in the wake of increased state medical marijuana laws, the DOT stands strongly by its longstanding policy prohibiting any marijuana use by transportation employees.  The DOT’s stance became particularly clear when its Office of Drug and Alcohol Policy and Compliance issued a Notice six years ago in response to a Department of Justice Guidance.

In October 2009, the Department of Justice (“DOJ”) issued guidelines for federal prosecutors in states that legalized medical marijuana use.  The DOJ’s guidance stated that federal prosecutors should not focus federal resources on individuals whose actions are in compliance with existing state medical marijuana laws.  Accordingly, the DOJ made clear that this guidance neither legalized nor provided medical marijuana use as a defense to a CSA violation.  However, one thing was not clear:  whether the DOJ’s guidance would also affect the DOT’s position on marijuana use by safety-sensitive transportation employees.  After receiving several inquiries from employers in the industry, the DOT sought an opportunity to reinforce its position and issued a “Medical Marijuana” Notice in June 2009.

In its Notice, the DOT firmly stated:  “We want to make it perfectly clear that the DOJ guidelines will have no bearing on the Department of Transportation’s regulated drug testing program. We will not change our regulated drug testing program based upon these guidelines to Federal prosecutors.”  The DOT subsequently emphasized that despite the successful legalization of medical marijuana across states, all safety-sensitive employees – which includes truck drivers – will remain prohibited from using marijuana so long as it constitutes a Schedule I drug.  The Notice carefully reminded employers in every state that its drug testing regulations did not permit medical marijuana use under a state law to serve as a valid medical explanation for a transportation employee’s positive drug test result. To drive this point home, the DOT included the text of the relevant section of the regulation:

• 40.151 What are MROs prohibited from doing as part of the verification process?

As an MRO, you are prohibited from doing the following as part of the verification process:

(e) You must not verify a test negative based on information that a physician recommended that the employee use a drug listed in Schedule I of the Controlled Substances Act. (e.g., under a state law that purports to authorize such recommendations, such as the “medical marijuana laws” that some states have adopted.)

The DOT’s 2009 Notice certainly cleared the smoke for employers of CMV drivers in every state:  all drivers subject to DOT testing are not permitted to use marijuana, even if use of marijuana is in compliance with state law.

Understandably, confusion regarding medical marijuana use by CMV operators seems to arise with respect to businesses that employ non-CDL drivers.  Under federal law, non-CDL drivers are not subject to DOT drug testing.  As a result, some employers do not test non-CDL drivers for marijuana under the belief that it is legal for these employees to use medical marijuana in states that have legalized it.  However, this belief is false.  As previously discussed, all drivers of CMVs must pass DOT physicals conducted by a certified medical examiner (“CME”) in order to obtain medical cards.  Although non-CDL drivers are not subject to DOT drug testing, Part 391.41 of the Federal Motor Carrier Safety Administration’s Regulations state that the use of Schedule I drugs will automatically disqualify any driver from being certified to operate a CMV.  Thus, upon examination of a non-CDL driver, a CME could choose to request a non-DOT drug test before issuing a medical card.  If a non-CDL driver subsequently fails such a drug test due to medical marijuana use, he or she will not qualify for a medical card to drive a CMV.  An employer is then faced with the unexpected loss of a qualified non-CDL driver due to a failure to screen the driver for marijuana.  Such an outcome necessarily creates setbacks for businesses relying on non-CDL drivers to keep their vehicles on the road.

The bottom line? Regardless of a state’s medical marijuana law, all drivers of CMVs should be a part of a drug test program that includes testing for marijuana.

The amalgamation of litigation surrounding medical marijuana demonstrates that state medical marijuana laws present a minefield for employers.  As previously discussed, employers seeking to provide a drug-free workplace run the potential risk of liability for disability and employment discrimination under state laws.  Unfortunately, discrimination claims are not the only liability risks facing employers.  The involvement of driving inevitably raises a myriad of public safety concerns.  Thus, drug use by drivers, while on-the-job or at home, also exposes employers to tort liability for claims of negligent hiring and retention.  So long as marijuana remains illegal under federal law, employers should continue to review drug testing policies in light of burgeoning state efforts to legalize medical and recreational marijuana.

link to article – https://www.fandpnet.com/wp-content/uploads/2017/09/MarijuanaMotorIndustry.pdf
link to full Behind the Wheel quarterly newsletter – http://online.anyflip.com/ejlw/tfkc/mobile/index.html

Attorneys Mike Bennett and Kim Rhodes secured a verdict in favor of Giant Food, LLC after litigating a two-day jury trial in the Circuit Court for Charles County on August 30 and August 31, 2017.  The claimant, who appealed the decision of the Workers’ Compensation Commission finding in favor of Giant Food, alleged a traumatic brain injury resulting in seizures following a trucking accident.  While there was no doubt that the claimant sustained benign injuries to his shoulder and neck, the dispute over whether he sustained a traumatic brain injury was the focus of this entire case, as it would have exponentially elevated potential exposure.   The successful verdict saved Giant Food not only from approximately two years of temporary total disability benefits and all costs of related medical treatment, but also from permanent total disability exposure.

Understanding the elevated potential exposure associated with this trial, Mr. Bennett and Mrs. Rhodes laid out their trial strategy nearly one year before stepping foot into court.  The two combined their efforts in conducting extensive research into the details of the accident, including visiting the scene of the accident, identifying and securing key evidence immediately after the accident, researching and consulting with medical professionals regarding the claimant’s alleged injuries, and maintaining witness communication throughout the legal process.  When it came time to execute the trial strategy, Mr. Bennett and Mrs. Rhodes brought in various visual demonstrative evidence to help the jury have a better understanding of the accident itself.  If there was any doubt in the jury’s mind as to how this accident occurred, it was expelled when a video of the accident itself was played for the jury.  The jury returned a unanimous verdict in favor of Giant Food at the conclusion of the two day trial.

While the potential exposure for this claim could have reached seven figures if the jury decided in favor of the claimant, the jury’s favorable verdict resulted in no money being awarded to the claimant as Mr. Bennett and Mrs. Rhodes proved to the jury that the claimant did not sustain a traumatic brain injury in the trucking accident.

 

Alex Mayfield in the Herndon, Virginia, office recently prevailed at an evidentiary hearing on the denial of a claim before the Virginia Workers’ Compensation Commission. Claimant, appearing pro se, alleged that he sustained an injury to his chest, shoulder, and neck, when he swatted at a fly while working as a test proctor. In addition to lifetime medical benefits, Claimant sought temporary total disability benefits from the date of injury to present and continuing. On behalf of the Employer and Insurer, Alex raised defenses of: (1) no injury by accident arising out of or in the course of employment, (2) claimant not disabled to extent alleged, and (3) claimant failed to provide timely notice of his alleged injuries.

At the evidentiary hearing, Claimant testified that he was seated at his workstation when he observed a flying insect that flew underneath his desktop. After he spotted the insect, he testified that he bent forward at his waist for approximately 15-30 seconds in an attempt to swat the bug away with a piece of paper. As he was straightening up to a seated position, he allegedly felt a burning sensation or spasm in his stomach/chest. Claimant testified on cross-examination that the bug was “not a regular fly” and that he did not want the people undergoing testing to be disturbed. Additionally, he stated that his job duties as a test proctor required him to exterminate pests from the facility, including rats. As to medical treatment, Claimant stated he initially thought the pain would subside, but eventually sought treatment at the emergency room, where he was given muscle relaxers and pain medication.

Although Claimant claimed wage loss related to the alleged work accident, including an inability to work for 8 hours a day due to his pain, he admitted to subsequently working as a shuttle driver and accepting “love offerings” (i.e. donations) through the ministry. Claimant provided minimal medical evidence to the Commission, which included a referral for physical therapy dated February 6, 2016, and a “Patient Visit Information” document from the ER noting a visit on February 19, 2016 for a chest wall and muscle spasm.

Claimant, upon his request for hearing, had the burden of proving the essential elements of his case by a preponderance of the evidence. For a basic accidental injury claim in Virginia, the essential elements include an (1) injury by accident, (2) arising out of claimant’s employment, and (3) in the course of claimant’s employment. Additionally, Claimant must prove the causal relationship of the alleged accident to medical treatment sought and subsequent wage loss.

The Deputy Commissioner weighed the evidence presented at the hearing and ultimately found that the claimant did not meet his burden of proving an injury by accident arising out of his employment because “the simple act of sitting back up in a chair after swatting at a fly” is not a risk associated with Claimant’s employment. In his Opinion, the Deputy Commissioner relied on important authority regarding the “arising out of” prong of an accidental injury claim—“‘[t]he mere happening of an accident at the workplace, not caused by any work related risk or significant work related exertion, is not compensable.’ Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989).” If the general public is exposed to the same risk outside of the workplace, then the injury is not likely to be found as compensable under the Act.

Because the Deputy Commissioner found that Claimant did not prove an injury by accident, he did not make findings related to the other defenses raised. As this case was decided at the evidentiary hearing level, it does not have any precedential value, but it provides an overview of the law regarding the “arising out of” element needed to prove compensability. Many injuries, although they occur at work, are not compensable injuries under the Virginia Workers’ Compensation Act.