INTOXICATION BILL ANAYLSIS: Prone to Abuse and Overly Inclusive
Recently, Governor Martinez signed into law a bill that limits the compensation a Worker may receive if he or she was injured on the job while intoxicated or otherwise impaired.
Recently, Governor Martinez signed into law a bill that limits the compensation a Worker may receive if he or she was injured on the job while intoxicated or otherwise impaired.  Certainly on the surface it seems an appropriate concept; why should an Employer pay benefits for a Worker injured as a result of their own poor judgment? At least, that is how it was sold, but it is not nearly precise enough to accomplish the purpose that it was drafted for.
The actual language of the statute states:
"52-1-12.1. REDUCTION IN COMPENSATION WHEN ALCOHOL OR DRUGS CONTRIBUTE TO INJURY OR DEATH--EXCEPTIONS.-
A. As used in this section, "intoxication" or "influence" means a temporary state or condition of impaired physical, mental or cognitive function by means of alcohol, a drug, a controlled substance or a combination of two or more substances at the time of injury or death. "Drug" or "controlled substance" pursuant to this section does not include medications prescribed to a worker by the worker's licensed health care provider, taken in accordance with directions of the prescribing health care provider or dispensing pharmacy, unless such medication is combined with alcohol or a non-prescribed drug or controlled substance to cause intoxication or influence.
B. Except as otherwise provided in this section, compensation benefits otherwise due and payable from an employer to the worker under the terms of the Workers' Compensation Act shall be reduced by the degree to which the intoxication or influence contributes to the worker's injury or death; provided that the reduction shall be a minimum of ten percent but no more than ninety percent.
C. Test results relied on as evidence of a worker's intoxication or influence shall not be considered in making a reduction in compensation determination unless the test and testing procedures conform with standard testing procedures generally accepted in the medical community and the test is performed by a laboratory certified to do the testing by an organization nationally recognized to do such certification. Testing may include testing methods for urine, breath or blood.
D. The director shall adopt rules regarding tests, testing and the cutoff levels for intoxication or influence.
E. If a post-accident test pursuant to Subsection C of this section is required of a worker and the worker refuses to submit to the test or to release the post-accident test results to the employer, no compensation otherwise payable from an employer under the terms of the Workers' Compensation Act shall be paid to the worker claiming compensation.
F. Testing shall be at the employer's expense and shall not be used as evidence in a criminal proceeding against the worker. Test samples shall be taken as a split sample. One part of the sample shall be held by the testing facility for twelve months from the date of the original test. Within this twelve-month period, the worker has the right to request a second test of the original sample at the worker's expense.
G. An employer shall be barred from claiming a reduction in compensation pursuant to this section if, before the accident, the employer has actual or constructive knowledge of the worker's intoxication or influence and a reasonable opportunity to take appropriate measures in response to the intoxication or influence but fails to take those measures.
H. An employer shall be barred from claiming a reduction in compensation pursuant to this section if the employer fails to implement a written policy that declares a drug- and alcohol-free workplace, which may include post-accident testing in accordance with this section, and that gives its employees notice that workers' compensation benefits may be reduced in the event intoxication or influence contributes to a workplace injury.
I. Reduction or denial of compensation benefits authorized under this section shall not affect payment of medical benefits provided for pursuant to Section 52-1-49 NMSA 1978.
J. Reduction or denial of compensation benefits authorized under this section shall not affect payments of benefits to the dependents of a deceased worker pursuant to Section 52-1-46 NMSA 1978."
See NMSA 1978, 52-1-12.1 
The first and most prominent issue with this bill is this paragraph, which allows the Workers Compensation Administration to implement the standards of testing and cut off levels:
D. The director shall adopt rules regarding tests, testing and the cutoff levels for intoxication or influence.
. The Proposed Rule, states in part:
(b) An otherwise valid post-accident drug test may only be relied upon to reduce benefits if the testing laboratory uses cut-off concentration levels for initial and confirmatory drug tests as set forth herein.
(c) Initial test cut-off concentrations
(1) Marijuana metabolites _________________________ 50 (ng/mL);
(2) Cocaine metabolites __________________________ 150 (ng/mL);
(3) Opiate metabolites (Codeine/Morphine) _________ 2,000 (ng/mL);
(4) 6-Acetylmorphine ______________________________ 10 (ng/mL);
(5) Phencyclidine (PCP) ___________________________ 25 (ng/mL);
(6) Amphetamines (AMP/MAMP) _______________________ 500 (ng/mL);
(7) Methylenedioxymethamphetemine (MDMA) __________ 500 (ng/mL)
*Ng/ml translates to nanograms/milliliter, which is a unit of measurement to identify the volume of metabolites present in the sample. The cut off level is the amount of metabolites that must be present before a sample can be declared positive.
While there are legitimate concerns regarding the cut off levels for all listed drugs, the inadequacies with this statute are clearly highlighted when it comes to the use of marijuana. Medical marijuana is legal under the Erin and Lynn Compassionate Use Act, is frequently used to treat Workers Compensation injuries (for appellate court decision granting this right click here ; for procedure on how to obtain reimbursement for medical cannabis click here ), and may be legal for recreational use in the near future. [5,6,7,8] This law does not apply to licensed medical cannabis users. (For discussion of Safe Harbor Provision, click here.
While the urine test is the most commonly used drug test, it does not measure the psychoactive ingredient in marijuana, and thus, in no way measures impairment. The urine test measures THC-COOH, a metabolite that can remain in the body for long periods of time with absolutely no impairing effects. If you don"t believe that, take it up with the National Highway Traffic Safety Administration (otherwise self-described as the federally funded institute responsible for reducing deaths, injuries and economic losses from motor vehicle crashes). As they state in their Drugs and Human Performance Fact Sheet:
"Detection of total THC metabolites in urine, primarily THC-COOH-glucuronide, only indicates prior THC exposure. Detection time is well past the window of intoxication and impairment".
Detection time indicates how long that metabolite will be present in the system after use stops. Detection time varies wildly dependent on a number of factors, including Weight, Body Fat, Metabolism, Amount Used and Frequency of Use. Although the estimates can vary substantially between sources, the below table is representative of the averaged times:
Marijuana Detection Time Based on Usage
One time usage5-8 days
Usage at 2-4 times a month11-18 days
Usage at 2-4 times per week23-35 days
Usage at 5-6 times per week33-48 days
Daily Usage49-63 days
Based on the above data, the recreational user, who consumes daily, will "pop" positive from 20 - 60 days after their last usage, and while cognitive impairment may occur after usage, the effects are not long lasting or considered severe, ranging at the top end of about 4 hours from last use . The category where this inequity is going to be most apparent is the one time users, who for instance may go to Colorado for vacation, and indulge the local customs, which are of course legal in Colorado, come back to work, and then have a worked related accident in the middle of the week. They will test positive, but are obviously not impaired.
This is where the rubber meets the road on this issue. This statute has a high potential for abuse, due to its discretionary nature. If you test positive, then at the insurer"s discretion, they may opt to reduce your benefits. That reduction only requires a good faith basis on their part. If the insurer"s position is that you were impaired, be it reasonable or not, they can opt to reduce benefits by up to 90 %. This mechanism then can be used to force Worker"s to accept settlements rather than be starved out in the litigation process.
Consider this against the back drop of today"s economic climate, where 76 % of all Americans live paycheck to paycheck. Further consider that if you are off work due to an accident, you are only entitled to 2/3 of your gross wages anyway, and it presents a real problem.
Take the hypothetical example of an oilfield Worker, supporting 2 kids at home, who makes $ 75,000.00/year for their extremely dangerous profession. That Worker makes $ 1,442.31/week. As a result of the accident, the oilfield Worker is disabled and unable to work. The max benefits a Worker would be entitled to if off work is $ 785.03. Then let"s suppose that Worker tested positive for Marijuana on a urinalysis test that was the result of a recreational trip to Colorado the week before. Finally, assume that the insurer contends that marijuana was a 50 % contributory cause to Worker"s accident and reduce benefits accordingly. The net result is that this Worker who made $ 75,000.00/year, is now in the position of subsisting off of $ 20,410.78/year. Now obviously, you can go to trial, and a judge will consider the evidence, and if it comes back in your favor, then the insurer will back pay benefits, but the typical time frame to try a case from inception to compensation order is about 1 to 1.5 years, if successful at the trial on the merits.
For a Worker who supports his family on a paycheck to paycheck basis, this decline in income would be catastrophic, causing that Worker to lose his house, default on obligations, and cause that Worker significant financial stress.
In review, the Intoxication statute is going to target an overly broad class of Workers and has a high potential for abuse, but far more telling is that this statute does not meet the cause (impairment resulting in an accident) and effect (resulting in reduced compensation) that it was drafted for.
 Under the Lynn and Erin Compassionate Use Act, NMSA 1978, 26-2B-7(G), the use of medical marijuana is legally authorized to allow the beneficial use of medical cannabisfor alleviating symptoms caused by debilitating medical conditions and their medical treatments.
 As of today, medical use of marijuana is legal, and 61 % of New Mexicans are in favor of following in Colorados footsteps and legalizing marijuana for recreational use. And given the national momentum it is not difficult to imagine that New Mexico will follow the trend and legalize marijuana for recreational use, thereby creating an additional tax base, within the next 5 years.
 In several cases the appellate courts of this state have endorsed the use of marijuana in the Workers Compensation system as a less expensive and safer alternative to Opioid medications.
 The statute in this case does not apply to legal use marijuana under the safe harbor provision of the statute, subsection A, as it is prescribed by a licensed healthcare provider. See NMSA 1978, 52-1-12.1(A).
 Shockingly, it is the most commonly used because it is the cheapest comparatively, and comprises 95 % of all drug tests nationally.
 Franjo Grotenhermen, Journal of Cannabis Therapeutics, Vol. 3(1), 2003, Clinical Pharmacokinetics of Cannoabinoids, Pulmonary [lung] assimilation of inhaled THC causes a maximum plasma concentration within minutes, while psychotropic effects [the high] start within seconds to a few minutes, reach a maximum after 15 to 30 minutes, and taper off within 2 or 3 hours); Robert Julian, A Primer of Drug Action, (absorption of inhaled drugs is rapid and complete. The onset of behavioral effects of THC in smoked marijuana occurs almost immediately after smoking begins and corresponds with the rapid attainment of peak concentrations in plasma. Unless more is smoked, the effects seldom last longer than 3 to 4 hours..).