Can my workers’ compensation benefits be denied because of a failed drug test?
What happens if I test positive on a drug screen after an on-the-job accident?
This is a question we frequently get asked. Can the insurance company deny your workers’ compensation benefits? Can your employer fire you from your job? What are you options?
Let’s address each question individually so we can paint a picture regarding what happens after a positive drug test.
Georgia workers’ compensation law
Georgia law (O.C.G.A. 34-9-17) lists grounds for being able to deny what would normally be an accepted and potentially compensable workers’ compensation case. This means that when a case would otherwise fall under the coverage of workers’ compensation, there is a way to legally deny the claim.
It’s important to look at the full statute because there are many things to unpack. The statute, in part, states:
(b) No compensation shall be allowed for an injury or death due to intoxication by alcohol or being under the influence of marijuana or a controlled substance, except as may have been lawfully prescribed by a physician for such employee and taken in accordance with such prescription:
(1) If the amount of alcohol in the employee’s blood within three hours of the time of the alleged accident, as shown by chemical analysis of the employee’s blood, urine, breath, or other bodily substance, is 0.08 grams or greater, there shall be a rebuttable presumption that the accident and injury or death were caused by the consumption of alcohol;
(2) If any amount of marijuana or a controlled substance as defined in paragraph (4) of Code Section 16-13-21, Code Sections 16-13-25 through 16-13-29, Schedule I-V, or 21 C.F.R. Part 1308 is in the employee’s blood within eight hours of the time of the alleged accident, as shown by chemical analysis of the employee’s blood, urine, breath, or other bodily substance, there shall be a rebuttable presumption that the accident and injury or death were caused by the ingestion of marijuana or the controlled substance; or
(3) If the employee unjustifiably refuses to submit to a reliable, scientific test to be performed in the manner set forth in Code Section 34-9-415 to determine the presence of alcohol, marijuana, or a controlled substance in an employee’s blood, urine, breath, or other bodily substance, then there shall be a rebuttable presumption that the accident and injury or death were caused by the consumption of alcohol or the ingestion of marijuana or a controlled substance.
(c) With the exception of the rebuttable presumptions set forth above, the burden of proof shall be generally upon the party who claims an exemption or forfeiture under this Code section.
Basically this means that when an individual tests positive for alcohol, marijuana or a controlled substance within 8 hours of the accident, or unjustifiable refuses to take a test, the insurance company can legally deny the claim. It is the burden of the injured worker to prove that either the test was invalid, or that the injury was not caused by the intoxication.
How to beat a failed drug test
Dispute the test itself
The first tactic for disputing a positive drug test is to question the test itself.
As you can see from statute, the test must be performed in accordance with the regulations set forth in O.C.G.A. 34-9-415. Failure to comply with these procedures can invalidate the admissibility of the test. These requirements have been established to ensure validity of the testing and to provide a measure of trust in the results that they provide.
Some of the requirements for drug testing include:
- A specimen must be obtained with due regard to the privacy of the person providing the specimen.
- The specimen must be labeled.
- The test must be conducted by an approved laboratory.
- The injured worker can record any information that may be relevant to the test, such as current medications.
- A positive result must be reported to the injured worker in writing.
- The chain of custody procedures must be followed.
If any of the procedures are not followed by the employer or the lab, then the test may be considered invalid. In fact, it might be no fault of the employer or the insurance carrier that the test was corrupted, yet it may not come in.
An example of these circumstances may include a test performed within 8 hours of the accident, but with a failure by the laboratory to follow the appropriate documentation of the chain of custody. Without that documentation, we don’t know if the sample was tainted or not; therefore, the test is invalid and cannot be used in a hearing as evidence. The employer and insurance carrier can still deny your claim, but they cannot rely on that evidence.
For example, in one case, we had a client who was taking prescription medication for an on-the-job injury. Her employer had offered her light duty work which she was able to perform with the use of prescription medications. Unfortunately, she sustained a new injury and was subjected to a new drug screen. She was not afforded the opportunity to provide information about her current medication and the employer and insurance carrier attempted to deny the new claim based upon a positive drug test. The administrative law judge threw out this improper attempt to deny the claim based upon a positive drug test.
Dispute the timing of the test
A second avenue to question the test is to inquire when it was taken.
Sometimes the employer will ask for a test days after the accident and attempt to use that test to deny the claim. The test must be performed within 8 hours of the accident for it to be admitted as evidence as the basis for a denial. While this doesn’t preclude the employer from terminating the injured worker for testing positive, it just prevents them from using it as a basis to deny a workers’ compensation claim because it cannot be used to demonstrate the injured worker was intoxicated at the time of the accident.
Did the intoxication or impairment cause the workplace accident?
Denying an otherwise compensable claim for a drug use requires 2 important factors:
1. There must be a positive drug test, and
2. The accident and injury or death were caused by the consumption of alcohol or the ingestion of marijuana or a controlled substance.
Just because a person tests positive for alcohol, a controlled substance or marijuana, doesn’t necessarily mean that your workers’ compensation benefits can be denied. There must be a correlation between the accident and the intoxication.
This can perhaps best be described via the following examples:
A roofer is laying shingles on a roof 30 feet from the ground. They lose their balance and fall, fracturing their leg. The roofer is transported to the emergency room via ambulance and a drug test is taken within 8 hours of the accident. The test comes back as positive for marijuana. It is determined that the reason the individual fell was because they were impaired. This workers’ compensation case can be legally denied.
A passenger is in a car driven by their coworker. They are making a delivery for their employer when they are rear-ended. Both the driver and the passenger are taken to the emergency room via ambulance and a drug test is taken within 8 hours of the accident. The test for the passenger comes back as positive for marijuana. In this case, benefits should NOT be denied. The marijuana use of the injured passenger is irrelevant to why they were hurt in the work-related car accident since the workers were hit by a third party. The impairment of the injured worker didn’t cause the accident.
Why you need an experienced Georgia workers’ compensation lawyer
If a person can defeat an attempt to deny a claim because of a positive drug test, it doesn’t necessarily mean that the insurance carrier will do the right thing and commence medical treatment and indemnity benefits. There are times when an insurance company should pay workers’ compensation benefits, but fail to. In these instances, the injured worker should hire an attorney who will help ensure they receive the benefits that they are entitled to.
If you have any questions regarding drug tests after an on the job accident or intoxication as it relates to workers’ compensation, don’t hesitate to contact the Atlanta work injury attorneys at Gerber & Holder Attorneys At Law.