Court upholds ruling for worker

Friday, Sept. 3, 2004 | 9:40 a.m.

CARSON CITY -- The Nevada Supreme Court ruled Thursday that a construction worker was entitled to compensation when he fell from a scaffold in Las Vegas, even though he tested positive for marijuana metabolite in his urine.

The court upheld District Judge Allan Earl, who ruled in favor of Keith Hurley in his dispute with Desert Valley Construction and Employers Insurance Company of Nevada.

The insurance company denied benefits after Hurley's post-accident test revealed he had 747 nanograms of marijuana metabolite per milliliter in his urine. The law says that the presence of a controlled substance in a worker's system at the time of the accident is presumed to be a proximate cause of the injury unless there is other evidence to overcome that presumption.

Hurley said the scaffold rolled into a hole that caused the accident.

Dr. Raymond Kelly testified at the hearings that levels of marijuana metabolite above 100 nanograms per milliliter could cause impairment. He said the presence of more than 700 nanograms supports the notion Hurley was impaired.

None of Hurley's fellow employees had witnessed the accident. But after the sessions before hearing and appeal officers, Hurley found a witness named Tim Griswold who worked for another contractor. Griswold said he witnessed the accident when the scaffold rolled into the hole and he added Hurley did not seem to be impaired.

The court, in an opinion written by Justice Bill Maupin, said substantial evidence supported the theory that the cause was the movement of the scaffold.

The court also noted that the law requires the presence of a controlled substance in the blood or urine of an injured worker as evidence to deny benefits. In this case, the court said the post-accident drug test revealed the presence of marijuana metabolite, THC carboxylic acid, which is not listed as a controlled substance.