Drug Testing and Work Inuries

On May 6, 2025 the Mississippi Court of Appeals handed down its decision in Daniel Ladner v. Hinton Homes LLC and AmFed Casualty Insurance Company, No. 2024-WD-00941COA. As you may know, the Court of Appeals hears almost all of the appeals from decisions of the Mississippi Workers’ Compensation Commission. The Court of Appeals affirmed the decision of the Commission denying workers’s compensation benefits to Daniel Ladner based on his failure to prove that intoxication was not a contributing cause of his work injury pursuant to §71-3-121(1) Miss. Code Ann. The claim was initially denied by the Administrative Judge at hearing and the denial was subsequently affirmed by the Full Commission and the Court of Appeals.

The Ladner decision highlights the manifest injustice surrounding work injury drug testing in Mississippi since the passage of the 2012 amendments to the Workers’ Compensation Law (“the Act”). As you may know, the Legislature passed workers’ compensation “reform” in 2012. What you may not know is that Mississippi was, and remains, the state paying the least amount of indemnity benefits to injured workers for the shortest amount of time. Mississippi workers receive the smallest amount of benefits in the nation. That reality does not suggest that “reform” in favor of employers, insurance companies and self-insured groups was necessary in 2012. But that is what they lobbied for and that is what they got.

What the injured workers got was a raw deal on drug testing. Intoxication has always been a defense to a workers’ compensation injury claim since the Act was passed in 1948. §713-7 Miss. Code Ann. excludes injuries from compensation that were the proximate result of the injured worker’s intoxication or the result of the worker’s wilful intent to harm themselves or others. The key language was historically the part requiring the intoxication to be the proximatecause of the injury. Meaning, if the reason you got hurt on the job was because you were drunk or high, then you don’t get benefits. Seems logical and fair.

In 2012, the logic and fairness went out the window. Did you know that after 2012 postaccident drug testing is mandatory under state law? Law enforcement is required to have probable cause to force drug and alcohol testing on a citizen. Injured workers don’t have that basic freedom in Mississippi. If you work here, you must submit to post-accident drug testing if you are injured on the job.

Did you know that refusal to take a post-accident drug test is treated as a positive drug test and intoxication is presumed to the cause of the work injury? Did you know that a positive drug test in any amount - even if it is a prescribed drug if “taken contrary to label warnings” or “contrary to the prescriber’s instructions” is presumed to be the cause of the work injury?

That means that a worker who takes a marijuana gummie while on vacation in a state where recreational marijuana is legal would have his claim denied in Mississippi if he got hit by a brick on the job site two weeks later. Marijuana stays in the system long enough that a drug screen would still flag positive two weeks later. Intoxication would be the presumptive cause of the work injury - even though the worker was not intoxicated and marijuana had nothing, whatsoever, to do with the injury. Worse, medical marijuana is now legal in Mississippi and the Legislature has included medical cannabis as a drug that can be presumed to cause intoxication if a test is positive following a work injury.

Did you know that thousands of workers in this state have not reported being hurt on the job since 2012 because they know they will have to give a drug test? Better to work hurt than to risk being fired over a claim that will potentially be denied anyway. There is a stat that won’t show up on the books - how many claims the insurance companies no longer have to pay becausethe workers are too scared to even report the injury. This brings us to the Ladner decision. Mr. Ladner was nailing plywood decking on a roof when he fell through a hole and hit the concrete foundation below. He was rushed to the hospital by ambulance. Obviously a work-related injury right? Wrong. He was given a urine test at the hospital that was positive for cannabinoid which is a chemical that indicates marijuana was ingested sometime in the past but does not indicate amount of use or intoxication. By way of contrast, alcohol testing requires a certain level, .08%, in the breath or blood tested before “intoxication” is presumed. That is because studies have shown sufficient signs of impairment when that volume of alcohol is present and acting in someone’s body. The 2012 amendments presume alcohol intoxication at that same level, .08%. However, any positive drug screen regardless of when the drug was ingested or how slow the body metabolizes the chemical constituents - is presumed to the cause of the injury. And that is just stupid.

Mr. Ladner, and all of the co-workers present on the day of injury, testified that there was no marijuana use at work. No co-workers smelled marijuana or alcohol. No co-workers suggested that Ladner seemed impaired or intoxicated. Just the opposite. Everyone at hearing testified that Ladner was acting completely normal. Ladner testified that he started using marijuana after he was honorably discharged from the military to help him cope with his PTSD diagnosis. He testified that it had been “at least two weeks” before the accident since he last smoked marijuana. Regardless, intoxication was found to the cause of Ladner’s work injury. Claim denied. That is a particularly bleak outcome when you consider that Ladner’s sole and exclusive remedy for his work injury was workers’ compensation benefits. His employer has absolute immunity under Mississippi law - even if the employer was grossly negligent in causing the injury. Ladner, like all other Mississippi workers, cannot sue his employer even if theaccident was the employer’s fault. In exchange, Ladner was supposed to receive the “swift and certain” remedy of statutory workers’ compensation benefits. Except he didn’t.

The lesson of Ladner for workers’ compensation practitioners is to understand the “new” law. A positive drug screen creates a “presumption” that intoxication was the contributing cause of the accident. The presumption can be rebutted. But not just by testimony of the injured worker or the co-worker witnesses. Lawyers representing injured workers in this situation should retain a toxicologist or other qualified expert to review the drug test and give an opinion that the chemical constituent present in the test was not an indication of intoxication. The expert can provide proof of how the body metabolizes chemicals and how the chemical breakdown elements will show on a toxicology screen days, weeks or even months after being ingested - far longer than any euphoric or impairing effects would be present. The preponderance of the evidence shifts at that point and the presumption is almost always rebutted. The result - claimant obtains benefits. But not before having the claim denied. And having to hire a lawyer. And having to get an expert toxicologist. And often having to go through a full evidentiary hearing and appeals. “Swift and certain remedy?” Not hardly.

The Ladner decision could have come out differently for Mr. Ladner if a toxicologist or other expert had testified on his behalf. That said, what in the world are we doing in this state? Why are we denying the lowest amount of benefits in the nation - when those benefits are the only remedy the workers receive - over a mandatory drug test that does not have any rational relationship to intoxication? I’m all for the old statute and the common-sense conclusion that if someone is drunk or high at work and their intoxication contributes to the accident that they should not get benefits. The same is true for a worker that deliberately smashes their finger with a hammer. No benefits.

But mandatory post-accident drug testing when there is no reasonable suspicion of intoxication? Any positive finding presumed to be the cause of the injury until the injured worker proves otherwise? How is an injured worker supposed to understand that they need to hire a toxicologist? How can they afford expert fees on their own? How can they support their family if they cannot work due to injury but receive no work injury benefits?

I recently represented a gentleman who was injured on the job. His employer required a post-accident urine drug test. He complied and he passed. His employer then said they wanted a “hair follicle” test. Hair follicle testing is not a permitted form of drug testing in Mississippi according to the Department of Health rules which allow breath, saliva, urine and blood. Hair follicle testing has a window of 90 days to detect any amount of chemical screened for by the testing facility. Hair follicle testing has nothing, whatsoever, to do with determining whether someone was under the influence at the time of a work injury. The client refused the SECOND drug test. His employer and their insurance company stated that he refused drug testing under the statute and his claim was denied. A circuit court judge recently ruled that the employer and the insurance company were acting reasonably when they denied benefits based on the worker’s refusal to take the second drug test - which was to be hair follicle testing not permitted under the Department of Health rules.

I say again: “what are we doing in this state?”