It’s not that difficult to imagine a legal system in Mississippi without a workers’ compensation Act. After all, Mississippi did not adopt its workers’ compensation Act until 1948. Accordingly, there are still plenty of grandparents walking around that were born before workers’ compensation laws existed in Mississippi. (Some of them are still practicing law.) It’s not even necessary to look back 80 years to evaluate a legal system that does not mandate statutory benefits for work injuries. The State of Texas, for example, has legislated "opt-out" options for employers that choose to become "non-subscribers" and carry no workers’ compensation insurance. Other states allow local governments or specified types of employers to opt- out of full workers’ compensation obligations. Texas seems to be making it work as about 25% of the private sector employers have opted out of workers’ compensation. Negligence A worker in Mississippi before 1948 (or the employee of a Texas opt- out employer today) would have the option of suing his or her employer for damages. The typical cause of action would be for negligence and the injured worker would have the burden of proof to establish, by a preponderance of the evidence, that the employer breached a duty and that the breach caused damages to the worker. If the injured worker can establish by clear and convincing evidence that such an employer acted with actual malice, gross negligence evidencing a willful, wanton or reckless disregard for the safety of others or committed actual fraud they could potentially recover punitive damages under §11-1-65 Miss. Code Ann. The advantage to employers that are not required to obtain compensation insurance or not required to qualify as self-insurers (meaning no need to maintain reserves sufficient to pay anticipated claims) is that they save significant money by not paying premiums, administrative expenses or reserve maintenance amounts. Such employers may be sufficiently confident in their safety and human resource programs that they feel little risk from a negligence lawsuit. How Did We Get Here? German Chancellor Otto von Bismarck introduced the "Sickness and Accident Laws" in 1884 which is generally considered the first modern workers’ compensation system identified as "Workers’Accident Insurance." In 1897, the United Kingdom replaced the Employers Liability Act of 1880 with the "Workman’s Compensation Act." These early iterations of compensation laws were designed to provide some recovery to injured workers who would otherwise become the obligation of the state. In the United States, the federal government established a workers’ compensation program for its civilian employees in 1908 and the individual states began following suit shortly thereafter. By 1911, nine states had passed workers’ compensation legislation and by 1921 all but six states and the District of Columbia had a workers’ compensation act. The state of Wisconsin has the distinction of becoming the first state to successfully pass a workers’ compensation act. The state with the dubious honor of being last in the nation to adopt such laws is ... Mississippi. One might think that Mississippi’s adoption of workers’ compensation laws was routine given that pretty much the entirety of the civilized western world and every other state in this nation had adopted such laws. Not so - even though there was a 40 year track record in the United States evidencing the impact and effect of workers’ compensation, Mississippi employers actually largely opposed adoption of the Act and considered it to be "communism" or "socialism." There were other reasons for Mississippi’s reluctance. Recall that in the early 1900's, Mississippi was still a very poor and very agricultural state. Mississippi was, and remains, extremely rural and largely devoid of the huge industrial complexes that are more common in large population centers and big cities. Pubic welfare concerns such as the Triangle Shirt Waist factory fire in 1911 (which claimed the lives of 146 workers and exposed harsh working conditions and lack of safety measures) focused public outrage and demand for protections such as workers’ compensation laws. The fire at the Triangle Shirt Waist factory occurred in Manhattan. Most people in Mississippi at the time likely heard nothing about the event or, if they did, were not particularly moved by the deaths of factory workers in New York. So how did the Mississippi Legislature finally pass House Bill 351 of the 1948 regular session? It wasn’t easy. Mississippi employers did not want any type of compulsory statute. The initial version of the Act mandated participation of every employer who had in service 8 or more workman or "operatives" regularly employed in the same business under any contract of hire. This compulsory obligation triggered claims of violation of due process by both workers and employers. Early efforts in the United States to pass workers’ compensation laws had been defeated on due process and other constitutional grounds before Wisconsin succeeded. At least four states had earlier compensation laws deemed unconstitutional. Similar challenges were made in Mississippi but both workers and employers eventually had to give ground to reach a compromise. The Great Trade Off The Great Trade Off, the Grand Bargain or the Grand Exchange are all descriptions of the fundamental nature of workers’ compensation laws everywhere. Injured workers obtain partial wage loss replacement and medical care (or survivor benefits to their dependents in the cases of death) in a no-fault system. In exchange, the employers are insulated from tort liability to injured workers - even if the employers’ acts and omissions contributing to the injury were grossly negligent or substantially certain to cause harm. There are other purposes and advantages to workers’ compensation laws such as promotion of industrial safety, placing the cost of industrial injuries on industry as opposed to the state, and the prompt provision of medical treatment. That said, the primary trade off is that the injured worker loses the constitutional right to a trial or the recovery of damages. Loss of access to the court system and the protection of employers from punitive damage exposure, jury verdicts and massive litigation expense is a huge concession. For example, a worker that is rendered paralyzed by the negligence of a third party might receive millions of dollars in damages associated with their economic loss, non-economic loss (pain and suffering), disfigurement, loss of income and loss of household services. The same individual, if rendered paralyzed on the job in Mississippi, would receive medical treatment and a maximum recovery of $283,828.50 for a 2025 date of injury. The trade off for the loss of due process and fundamental property rights is supposed to be a guarantee of prompt, albeit limited, compensation for work injuries regardless of fault and prompt and speedy medical care for work- related injuries. Workers’ compensation systems have to function for all of the participants, as intended, to be successful. Why the System Works for Injured Workers A huge portion of the workforce does not have health insurance or savings to obtain medical care. Most workers cannot continue paying their bills if they are not able to work due to injury. Almost all short term and long term disability plans exclude workplace injuries from coverage. The upside of civil litigation is that the damage recovery can far exceed the limitations of statutory workers’ compensation benefits. The downside is the delay associated with having to pursue litigation to conclusion that can take years. If the primary income provider for a family is off work and needs medical treatment, no-fault compensation benefits paid promptly can be the difference between survival and financial ruin. The no-fault aspect of workers’ compensation is designed to provide benefits for work-related injuries even if the injured worker is at fault for the accident. The compensation laws are typically focused on whether the injury was work-related without regard to whether the accident was anyone’s "fault." For a large portion of Mississippi’s population, workers’ compensation benefits are reasonable. Mississippi is one of the poorest states in the country. The average weekly wage in Mississippi is currently $983.00 which is well below the national average and ranks between 49th and 50th depending on the year. Even worse, more than 25% of Mississippians have an average weekly wage of $687.00. The currently weekly maximum compensation rate in Mississippi is $630.73. Two-thirds of Mississippi’s current average weekly wage for all workers is $655.36 ($983.00 x 2/3 = $655.36). For those 25% to 30% of Mississippians earning an average of $687.00 per week, their compensation rate would be $458.02 ($687.00 x 2/3 = $458.02). That number looks a great deal like a paycheck after withholdings and deductions. Workers’ compensation indemnity benefits therefore can provide a reasonable solution, in the short term, for work injuries. That said, disabling injuries are devastating for high wage earners because the state weekly maximum is just that - a weekly maximum amount regardless of how much someone was earning. In addition, the scheduled maximums for certain injuries and the overall maximum of 450 weeks are arguably insufficient to compensate totally disabling permanent injuries. Why the Employer Wants Workers’ Compensation The short answer is tort immunity. Employers grumble and complain about workers’ compensation premiums and self-insured retentions or fund expense but they are able to statistically predict their exposure. The Mississippi Workers’ Compensation Commission provides its annual report of occupational injuries and illnesses which is available to the public. In 2024 there were 9,125 claims filed statewide. Of those, 2347 claims were controverted. The breakdown of gender, type of injury, mechanism of injury, time of injury, employment activity and county of occurrence are all provided. This data allows for very accurate analysis of cost risk for a workplace injury. Premiums are determined based on that risk as determined in the underwriting process. Workers’ compensation removes the unknown to a large extent and allows employers to incorporate the risk of workplace injuries into their budget with some reasonable accuracy. Workers’ compensation removes the risk that a devastating work injury could result in a financial verdict against the employer that means bankruptcy. Another advantage to employers is that the workers’ compensation goal of returning the injured worker to the workforce as quickly as possible benefits the employer’s business. The sooner an injured worker can be healed and come back to work the better it is for production and, ultimately, revenue. In addition, safety programs designed by workers’ compensation carriers and third party administrators greatly assist smaller employers in adopting policies and procedures that help avoid work accidents. Employers and carriers are logically working together to avoid or limit compensable injuries and claims. Constitutional Challenges to the Act The Mississippi Workers’ Compensation Law has survived several challenges to its constitutionality. In 1954, the Mississippi Supreme Court decided Walters v. Blackledge wherein a widow and her minor children brought an action directly against the employer to recover for the death of the deceased employee. The employer raised the exclusive remedy defense provided under the Act. The trial court found that the Mississippi Workers’ Compensation Law was unconstitutional and violated Sections 1, 14, 24 and 31 of the state Constitution. On appeal, the Mississippi Supreme Court noted that early workers’ compensation acts had been declared unconstitutional by some of the state courts. However, because the United States Supreme Court had upheld the constitutionality of the New York workers’ compensation act, the Mississippi court felt that the issues had been decided and fundamental rights of freedom and liberty to the individual must give way to public benefit. The Mississippi Supreme Court reviewed the claims that the Act violated the due process clauses of the state and federal Constitutions in that it abrogated the employee’s common law right of action for damages for personal injuries. The argument was that compensation laws arbitrarily established a measure of damages that bore no relationship to the actual loss sustained. The loss of the right to trial by jury and access to the courtroom (per the Grand Bargain) was asserted to be unconstitutional. Further challenge was to the loss of the ability to sue a co-worker that may be responsible for injury and restricted employment contract rights. The Supreme Court found that, " ... the certain remedy afforded by the compensation act is deemed to be a sufficient substitute for the doubtful right accorded by the common law." This rationale highlights the importance of the injured workers actually obtaining the "certain recovery" provided by a no- fault/strict liability system. Logically, the further Mississippi’s workers’ compensation system departs from the provision of certain remedy in favor of litigated challenges and outcomes, the more likely it is that the constitutionality of the Act will be challenged. The Mississippi Supreme Court in Blackledge also found that the Act did not violate an employee’s right to contract. It was asserted that employees, and employers, had lost the ability to make their own arrangements by way of employment contract secondary to the compulsory application of the law to qualifying employers. Essentially, the Court found that the police power of the state was sufficient to pass and enforce such laws for the good of the general welfare of the people of Mississippi. Forty-three years after the Blackledge court found the Act to be constitutional, the Mississippi Supreme Court evaluated a declaratory judgment action challenging constitutionality of Mississippi’s compensation system in Warren v. Mississippi Workers’ Compensation Commission. Six plaintiffs brought suit directly challenging the Act based on the familiar allegation of deprivation of due process secondary to the loss of access to the courts. However, new allegations that delays under the workers’ compensation administration and inherent prejudice of Commissioners through political appointment effectively rendered the Act unconstitutional. In other words, the plaintiffs in Warren were asserting that the speedy and certain remedy of the Act had been removed as a practical matter through inefficient administration. The trend toward litigating the compensability of injuries and the multi-tiered appellate process led to real life examples where injured workers did not receive benefits for 6-7 years. Additionally, the reality that the Full Commission is the " fact finder" whose determinations receive deference on appeal (and not the Administrative Judge that heard the case) allegedly resulted in a system that manipulated outcomes as opposed to fairly applied statutory law. The Mississippi Supreme Court looked carefully at §71-3-85 Miss. Code Ann. and its provision that one member of the Commission represent employers, one member represent employees and one member be a licensed attorney provides sufficient guarantee for a fair system. The assertion being that the licensed attorney would be obligated to follow the law regardless of affiliation or motivation to favor injured workers or employers. Bill Waller, Jr. was an expert for the plaintiffs and admitted on cross-examination that he did not believe the Commissioners who were sitting at the time Warren was decided were biased or unfair. Accordingly, the Court found that the mere possibility of prejudice and manipulation was insufficient to support striking down the Act. The Court also looked at the allegation that an average workers’ compensation claim that progressed all the way to the Supreme Court took an average of 7.3 years to reach final disposition. The parallel was drawn to normal tort litigation that often takes years to conclude and that compensation claims had, as a practical matter, become litigated lawsuits. The Court noted the delays in the system caused by both attorneys and circumstances but found that the plaintiffs failed to meet their high burden of demonstrating that the Act should be struck down based on "delay." Finally, there was challenge included concerning attorney fees because fees to the injured worker’s representative are limited by statute while fees to the employer and carrier are not limited. The implication was that the system limited access to competent representatives for the injured worker to those willing to work for a statutorily capped fee while simultaneously encouraging litigation by allowing defense attorneys to earn fees unrestricted by any limits. The Court found that the plaintiffs provided no proof that injured workers were being deprived of representation as a result of the statutory cap. Ultimately, the Mississippi Supreme Court again gave full consideration as to whether rights were being violated to the extent that the Act should be deemed unconstitutional and answered the question in the negative. Where We Are Now The lessons to be gleaned from Blackledge and Warren are found in the Court’s analysis and explanation that while rights were certainly being lost, there was a justification given the availability of swift and certain remedy without regard to fault. Additionally, while the Court was concerned with the delays in litigated cases they were not deemed to be the fault of the Commission itself as much as the litigation of the parties. The appellate delay was addressed in 2010 when the circuit court level of appeal was removed. Admittedly, the circuit court level of appeal was often lengthy and frustrating to all parties. Additionally, the creation of the Mississippi Court of Appeals (which recently celebrated its 30th year anniversary) effectively created a dedicated court available to hear workers’ compensation appeals from the Full Commission. As a result of these changes, it is unlikely that a challenge to the Act based on delay to reach final adjudication would be successful. As a practical matter, the Commission remains vulnerable to politics. The Full Commission remains the fact finder. The Commissioners are appointed by the Governor and confirmed by the Senate to serve six year terms. Accordingly, the makeup of the Commission will logically reflect the political affiliations in power at any given time. That said, the Court has repeatedly found that the Act provides a certain "check and balance" maintained by an attorney neutral. There have nevertheless been challenges over the years to the unbiased nature of the Commission wherein it has been asserted that the negative outcomes to injured workers by way of outright denials or limitations of recovery were statistically unsupported. Such challenges brought by peer review or other process have not resulted in any conclusion that the Act is unconstitutional. The ongoing determination of the Commissioners to decide the cases on the facts and the law without regard to any pre-determined political outcome, is always going to defeat a claim of bias in the system. The 2012 Amendments The legislative amendments to the Act of 2012 pose perhaps the greatest risk to the constitutionality of the Act at this time. Due process and claims of prejudice have been rejected by the Mississippi Supreme Court. However, as noted above, the Court’s analysis has always hinged on the certain remedies guaranteed to injured workers which, while not perfect, were sufficient to justify the loss of due process and other rights. In 2012, the Legislature passed what many call "workers’ compensation reform" which necessarily suggests that the Act required reformation. The well-known changes removed the obligation repeatedly underscored by the Mississippi Supreme Court that the Act must be liberally construed to achieve its beneficent purpose. The Court’s logic was that the benefits, even in close cases, must be provided for the Grand Trade Off (and constitutional fairness) to be obtained. In 2012, the Legislature also mandated post-accident drug screening (regardless of the absence of probable cause or reasonable suspicion) that a refusal to take a drug test or a positive drug test result created a legal presumption that an injury was due to intoxication and therefore not compensable. This provision was popular because it allegedly encouraged safety by removing drugs and alcohol from the workplace. Sure it did. As a practical matter, a great many injured workers since 2012 have not asserted workers’ compensation claims because they believe they would fail a drug test. It is curious that a compulsory workers’ compensation system would force someone to subject themselves to a potential criminal prosecution in order to obtain benefits presumably guaranteed by statute. Mississippi has now approved medical marijuana. That said, workers’ compensation insurance companies were specifically excluded by the Legislature from the obligation to provide medical marijuana to injured workers. Accordingly, an entire class of people in Mississippi - injured workers - may not obtain medical marijuana treatment for work injuries even if they qualify. These changes reflect an ever increasing atmosphere of litigation and erosion of the no-fault system. Challenges to whether a worker was in the course and scope of employment can, and have, resulted in injured workers being deprived of their tort remedy through the employer’s immunity and simultaneously being deprived of compensation benefits. As recently as last year. See, the Rambo decision. Interjecting a concept of employee fault (rule violation) into a no- fault system will logically cause the system to fail. It is submitted that the 2012 changes and continued attempts to limit Mississippi’s Act will result in constitutional challenges. Why We Need the Act Well ... for the presenters, it is how we earn a living. Looking around the room at the Mississippi Workers’ Compensation Educational Conference quickly reflects how many people of varying disciplines depend on the Act. The Commission directly employs 50-55 people. As noted, there is an average of 2,000 to 2,500 controverted claims every year in Mississippi. Those claims have attorneys involved representing claimants, employer and carriers. Those claims, as well as the non-controverted claims all have medical providers. 9,000 to 11,000 claims per year represent a lot of medical treatment and a lot of medical records. That many claims requires claim investigation by a lot of claim professionals employed by carriers and third party administrators. Vocational counselors, investigators (surveillance), staffing companies and a great number of other people dependent on the compensation system underscore its economic impact for the state. In other words, a whole lot of us really need this Act to keep on working for us to ... keep on working. If the Act Goes Away As a practical matter, Mississippi’s Act can only go away if its deemed unconstitutional or if the Legislature passes an opt-out amendment. If the Act were deemed unconstitutional, it is far more likely that only a certain provision would be attacked rather than the Act itself but there is authority that if any provision is deemed unconstitutional, the entire Act is deemed unconstitutional. That said, it is not unthinkable that the next time the Mississippi Supreme Court contemplates the constitutionality of the Act in Mississippi it determines that the swift and certain remedy and the attendant fairness of the Grand Bargain no longer exists. Recall that it was the Supreme Court that repeatedly emphasized the need for liberal application of the Act to ensure its remedial benefit to the workers. The Legislature specifically rejected that language in 2012 and the "balance" to that "check" may well be coming. If that happened, work injuries would return to the common law tort arena. Employers would be sued directly for negligence. Injured workers would lose the ability to obtain medical treatment other than at their own expense. Injured workers would lose partial wage loss replacement while unable to work. Employers would lose immunity and face potential financial ruin from a jury verdict system. The already burdened civil justice system in Mississippi would have thousands of new cases interjected into court dockets. A whole lot of people would be out of work. Conclusion The discussion today is part history lesson and part reminder. Understanding why we have the Act and understanding the challenges to the Act helps clarify the reason the loss of personal liberties has been deemed permissible. The best way to ensure the validity and success of the Act is to understand that the Act was never designed to foster adversarial positions. To the contrary, all participants working together to restore the injured worker to health and vocational opportunity remains the fundamental goal. That means claimant attorneys fairly pursuing and presenting evidence that accurately reflects the injured worker’s condition and employability. That means employers and carriers not litigating every issue and frustrating every medical treatment (utilization review). A genuine focus on getting the injured worker to maximum medical improvement and helping them get back to work organically removes so much delay and frustration from the system. The sheer amount of gamesmanship associated with selecting physicians for treatment, EME’s and IME’s is astounding. The amount of money spent lobbying the Mississippi Legislature each and every year in an effort to obtain more and more advantage is ultimately counter-productive and destructive. There is a reason that Nissan has a plant in Canton, Mississippi. There is a reason that Toyota, Continental and others built here in Mississippi. There is a reason that Amazon is building. Our Act is not perfect but it represents a good balance for employers and injured workers while simultaneously assisting to present Mississippi as a favorable place to do business. That means more and better jobs. Let’s don’t mess it up.

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?”