High Times at the Commission

As the first substantive post to the new blog, we thought it would be fun to examine an issue that tends to raise eyebrows – the intoxicated claimant.  In the recent case of Lenny Szarek, Inc. v. Workers’ Compensation Commission the Illinois Appellate Court, 3rd District, affirmed the Commission’s decision awarding benefits to a claimant despite the fact that he tested positive for drug use.

In this case, the claimant, an apprentice carpenter, was injured after falling through a hole in the second story of a construction site.  The claim was denied as the claimant tested positive for marijuana and cocaine after the accident.  The denial was supported by the opinion of the Respondent’s toxicologist who testified that the test results suggested impairment due to use of marijuana.  Although the witness testimony established that there were no “noticeable” signs that the claimant had used drugs, the Respondent’s toxicologist testified that it is often difficult to recognize the “very subtle” signs of marijuana intoxication.   The Respondent contended, therefore, that the claimant was removed from the course of his employment and that the cause of the fall was his drug induced impairment.

The Respondent, citing prior cases involving alcohol intoxication, Paganelis v. Industrial Commission and Parro v. Industrial Commission, argued that the tests which detected the narcotics should also be afforded great weight in determining whether the claimant was intoxicated.  Finding that “the testing for these two substances is simply different,” the Appellate Court rejected the Respondent’s argument and distinguished these cases as they involved alcohol rather than marijuana and found that the Respondent in this case failed to point to anything which suggested that the same inferences should be drawn from a positive test for alcohol and marijuana.

Remarkably, the Commission, and later the Appellate Court, also found that the existence of the hole itself was also a cause of the fall and that, therefore, even if the marijuana impairment was a contributing cause, it could not be the sole cause.  In so holding, the Commission noted that in Paganelis the respondent would have to establish either that the intoxication was the sole cause to prevent the claimant from recovering benefits or that the intoxication was so excessive as to constitute a departure from the course of employment.  As to the latter point, the Commission held that the testimony at trial established that the claimant was performing his job prior to the accident.  The Appellate Court found that the Commission decision on this point was not against the manifest weight of the evidence.


  • Positive marijuana tests might not carry the weight of a positive alcohol test;
  • The Commission will look for the existence of an arguably dangerous condition in determining the cause of an accident involving an intoxicated petitioner; and,
  • Witness testimony as to the Claimant’s condition is very important.  INTERVIEW THOSE

Thanks to the Illinois Workers’ Compensation Law Bulletin for bringing this case to our attention.

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