Intoxication

Ured · March 2005

Hi, this is my first posting. I am fortunate to have inhouse counsel, but he is traveling and out of reach. Our state doesn't have an explicit provision regarding intoxication as a disqualifying event or conduct under its workers comp laws. Employee injured his hand on job, tested negative for controlled substances. Was scheduled for surgery to repair damage. Surgery not performed because ee showed up intoxicated. WC carrier subsequently denied claim based on incident.

Our policies probably read much like yours. I would like to know what actions you have taken in similar situations?

pork1 · March 2005

[font size="1" color="#FF0000"]LAST EDITED ON 03-11-05 AT 01:58PM (CST)[/font][br][br]URED: WELCOME TO THE FORUM! Surgery not performed due to showing up for surgery "drunk", was there an official test accomplished for the drunkiness? If so, you might have the capability to terminate, otherwise, I would follow my companies policy and write the individual up and reschedule the surgery. The carrier nor your company can not deny treatment if that is what the physician has ordered. If you have the facts the ee is not protected for any current use of alcohol. His time with the physician and travel time is "on the clock" for our employees, and it probably is for yours, also. Check it out and seek a discussion with counsel before taking action. You could suspend the employee from work if he has been released by the physician, pending the completion of a seperate investigation of the circumstance which is not directly related to the accident w/injury.

PORK

Don D · March 2005

Sit tight till your attorney friend gets back. It all depends on the comp laws of your particular state. However, I cannot imagine that in any of the 50 states, intoxication FOLLOWING/AFTER a compensable industrial accident would be grounds for successful claim denial. That simply won't fly. In this state, you could terminate him for whatever you like and there is no such thing in this state as Workers Comp retaliation. But, I can't relate getting drunk after an accident to the accident itself. Maybe your in-house counsel can. You'll be lucky if he doesn't relate the accident to 'driving him to drink' and winds up charging you for counseling as well.

hhaynal · March 2005

I agree wholeheartedly with Pork and Don here. However, I am just throwing this comment out for consideration.

Can the employee showing up intoxicated for a surgical procedure be viewed as "refusal of treatment" so that the WC was rightfully denied?

Ured · March 2005

I am embarassed to say that until I read my own question, I didn't wake up to the "how can our WC carrier deny this claim" question. Then our system servers went down and I couldn't get back to the Forum until today.

WC coverage is in place. WC rep is new to job. Here's the basis for confusion. EE was on Friday night shift when injured. Went to ER for treatment. ER doctor wrote in his notes that ee was not tested, may be under the influence. EE tested following Monday. Test was negative. Claim was accepted. WP rep saw surgeon's notes that ee was intoxicated when he appeared for surgery. Coupled with the initial claim confusion, WC rep called to say claim denied.

EE has been referred to support group. Treatment has been rescheduled. Thanks for your response.

Whatever · March 2005

Now, I'm confused. Is this ee still being denied by wc carrier? If he was not tested, no matter what happened several days later, you can't just assume that someone was intoxicated at the time of the accident (or can you?).

Ured · March 2005

No. EE is covered. I don't know that I will ever know why Dr. wrote such confusing notes or why ee was not tested for substance abuse at first visit. WC accepted claim because when ee tested two days later [albeit too late for a meaningful test] his test was negative. Surgery has been rescheduled. Thanks for commenting.

safety · March 2005

Do you have a D& A policy in place and if so does it address post accident testing? If this occurred in my work place we would have had the individual tested according to our post accident policy. We always have a manager accompany the ee to the ER or other medical facility for the initial visit after an accident. If I had an ER doc tell me this I would immediately request a D & A test. According to our policy if there was any medical treatment beyond first aid, as defined by OSHA, we would conduct a D & A screen.

pork1 · March 2005

[font size="1" color="#FF0000"]LAST EDITED ON 03-14-05 AT 04:31PM (CST)[/font][br][br]SAFETY: We do also, but it requires a special contact withthe ER to insure the hospital knows that we test after any accident that cost us over $1.00. The hospital has our company in their data bank, they will test and during operating hours they will call to verify W/C. I was also surprised that the hospital, who refused surgery because someone was "drunk" did not go the logical step for their own protection to ascertain that the individual was legally intoxicated.

Oh well, we get better educated everyday. If for no other reason this poster help us, because I called the hospital administrator in our community to make sure nothing like this would happen to us. He assured me that our company was listed as one, who drug and alcohol test post accident w/injury. Their ER staff know to call to verify, but in the face of any question, they know it is one of our employees claiming W/C then they will test.

PORK

Don D · March 2005

[font size="1" color="#FF0000"]LAST EDITED ON 03-15-05 AT 04:15AM (CST)[/font][br][br]Surgical units will not perform surgery if the smell of alcohol is present. A patient need not be ascertained 'legally drunk' to meet the threshold. If a surgeon or pre-op staff smell liquor on a patient, it is typical that the surgery not be performed, regardless of the bac, unless it is emergency surgery.

ritamcguire · March 2005

From an HR/Safety perspective, the issue here has nothing to do with whether or not the employee was "legally" or "illegally" drunk or not drinking at all.

It is really a matter of post-accident D&A testing. As a WC case, our company requires the individual to be D&A tested whether he/she showed signs of drinking or not. If the individual showed up at the ER as an individual and not claiming WC, then it's a matter between the hospital and the individual. As noted in other posts to this question, our company has a protocol with the local ER. If any worker shows up claiming a WC injury, the worker is given a D&A test which we by contract have agreed in advance to pay for. We don't have to approve each situation; it's automatic. If the individual refuses the test, they are terminated. All employees have signed an agreement to this effect. And "Yes" we would still be responsible for the medical treatment even though we have terminated the employee for refusing to take the test.

Intoxication

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