Positive Test Comp Denial?
Don D
9,834 Posts
Are there states that will allow the employer or carrier to deny comp in cases where the post accident drug screen is positive? I learned last week, talking to a WC Commission attorney, that the only way it can be denied is for the employer to PROVE that drug use was the proximate cause of the accident. And the attorney said, "...And, you'll never be able to prove that."
Comments
"Effective October 13, 2004, Section 4123.54 of the Ohio Revised Code requires notice of rebuttable presumption. Rebuttable presumption means that an employee may dispute or prove untrue the presumption (or belief) that alcohol or a controlled substance not prescribed by the employee's physician is the proximate cause (main reason) of the work-related injury.
The burden of proof is on the employee to prove that the presence of alcohol or a controlled substance was not the proximate cause of the work-related injury. An employee who tests positive or refuses to submit to chemical testing may be disqualified for compensation and benefits under thw Workers' Compensation Act."
This notice must be posted throughout our premises.
We have not had an employee test positive post-accident yet to see if the above holds true.
If I was faced with scenario, I would deny the claim, and make the ee file a Petition for Benefits, make them go through the greivnace process, etc. In my opinion, it would be hard for them to prove that the root of the compensable accident was not causally related to the drug/alcohol abuse. Take away any other argument by showing the equipment was not faulty, etc. and I would say that you have all the proof you need.
Peyton Irby
Editor, Mississippi Employment Law Letter
Watkins Ludlam Winter & Stennis, P.A.
(601) 949-4810
[email]pirby@watkinsludlam.com[/email]
KANSAS Workers' Compensation State law denies compensation when an injury, disability or death was contributed to by the employee's use or consumption of alcohol or any drugs, including but not limited to, any drugs or medications which are available to the public without a prescription from a health care provider, prescription drugs or medications, any form or type of narcotic drugs, marijuana, stimulants, depressants or hallucinogens. It is conclusively presumed that the employee was impaired due to alcohol if it is shown that at the time of the injury that the employee had an alcohol concentration of .04 or more. An employee's refusal to submit to a chemical test is not admissible evidence to prove impairment unless there was probable cause to believe that the employee used, possessed or was impaired by a drug or alcohol while working. Kan. Stat. Ann. § 44-501(Supp. 1997). Not Available
Also from the DOL
MISSISSIPPI Workers' Compensation Premium Reduction Program State law provides for a five percent reduction in workers' compensation premiums to employers who establish a drug-free workplace program. In order to qualify for the reduction, employers must have a written policy statement, conduct drug and alcohol testing, maintain a resource list of EAP providers, provide employee education and supervisor training, and maintain confidentiality standards. MS Code Ann. 71-3-201 to 225. (1997). Workers' Compensation State law provides that no compensation will be awarded if the employee's intoxication is the proximate cause of his or her injury. Miss. Code § 71-3-7 (1993). Not Available
(Edit) And talk about profiling! If I were to profile the typical marijuana smoker here I would probably say it's going to be a male temp who has been here less than two weeks and is between the ages of 22 and 28. Would that match your profile? The person in this situation is a 64 year old woman who, prior to termination this week, had been here over five years.
As far as profiling, you would be amazed at the demographics of my positives. I can tell you this, no one in our hispanic workforce (80% +) has ever tested positive in post accident or pre-employment during my tenure (that's approximately 300 screens). How about them apples?
The young people are no longer into pot these days, they seem to gravitate towards stuff that I just don't get like "Special K" (a veterinary tranquilizer given to cats during spaying) which esentially turns them into paralyzed zombies for a few hours. That sounds like a lot of fun to me! So much for the giggles, munchies then a nap, huh?
Over the last 6 years, we have nailed 3 W/C cases and have denied all three medical coverage beyond the initial treatment, which we had to prior approve in order to get he Post accident Drug Test accomplished. I guess we are lucky that the ees did not have the education to get an attorney and take us to court. One did in Alabama,but we won. The ones in Mississippi have not taken us to court. I believe now that I know what you and now Payton have stated, I will continue to w/h medical attention beyond the drug and alcohol positive test resuts and wait for the uneducated to come at us from a legal perspective. Most have cried for us not to reveal the positive result to their family members, which is confidential. That is an easy one, and we always agreed not to tell anyone, unless there is a signed release provided by the x-employee for the release!
Have a Blessed day and a better one tomorrow!
PORK
When I wrote withheld medical attention, I meant we did not accept responsibility for the cost of treatment. The medical Industry took care of the individual, we simply refused to pay for the medical attention provided then and any attention required to date.
PORK