Drug Testing- Workers Compensation Injuries

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Practice Areas: Bankruptcy

In recent years the popular tool for denying people Workers Compensation Benefits has been work place drug testing.   The reading of the results of Drug Test are wrong more often than you might think.  Workplace Drug Testing must be conducted in accordance with Department of Transportation Regulations and usually according to AAMRO standards.  The problem is that we have found a large number of Medical Review Officers that do not know the rules of the AAMRO.

Work Place Drug Testing cannot be used as an excuse to deny an injured employee medical treatment; however, it can create a basis for terminating employment.  The problem with work place drug testing is that it usually occurs at the hospital after the Emergency Room has already commenced medical care.  If the drug test is administered more than 30 minutes after the medical treatment has commenced, there is a high likelihood that the test will show some form of pain killer, whether it be Opium/Morphine or some other form of pain killer.  It is important that you let the Medical Review Officer know that you have been given treatment at the hospital and that you provide him with the medical records from the Emergency Room, as most Medical Review Officers do not know that they cannot certify a Drug Test as Positive, under Department of Transportation Guidelines, unless the MRO determines what drugs were given in the hospital (where there is an Opiate/Morphine finding).  Yes we can get the Drug Test overturned, but in the meantime you have lost your job and there will be a problem receiving your Workers Compensation Benefits.  Federal Guidelines reflect that if a drug test shows an amount of Morphine/Opium, consistent with administration of a prescription/shot, then the Medical Review Officer must certify the test as negative, even if positive.  It is the Duty of the Medical Review Officer and not the employee to determine the drug used.

It can be said that the Medical Review Officers are failing their clients, the employer, in that the purpose of the Drug Test is to determine if the employee was under the influence of drugs at the time of the accident and the drugs caused the accident.  We can guarantee that after treatment at the Emergency Room, there is a strong likelihood that the employee will have some evidence of drugs in his body, so it can be said that the Medical Review Officer is failing his client when he certifies a report as positive, without doing an investigation.  Under the law of many states, the Medical Review Officer (MRO) is an agent of the Employer and owes the employer a duty to do an investigation and relaying the true facts to the employer.  To many Medical Review Officer's falter in their legal duty to the Employer.  The Employer needs to know that since they hire the Medical Review Officer. if he fails in his duty to the Employer, the Employer may be legally liable for the damages that ensue.

What happens if the MRO realizes he has made a mistake and rendered a positive report that should have been negative?  This happens more than one might imagine.  The MRO is might be a busy practicing Physician and doesn't even look at the reports, relying on a clerical person to perform the MRO duties.  This is a strict violation of MRO rules and procedures, but probably happens more times than can be imagined.  The MRO often corrects the report and says sorry, but the damage has been done.   It is past time for you to hire an attorney and bring suit against both the employer and the Workers Compensation Provider.

What can you do to protect yourself? First, if you have been injured on the job and taken to the Emergency Room, where you receive medical treatment and then a Drug Screen, contact a Worker's Compensation Attorney immediately.  When your drug test comes back positive for Opiates/Morphine or other pain medication, which it will come back as positive, your attorney can make sure the MRO is sent the correct information and that he performs his job correctly.   You can rest assured that the Medical Review Officer will probably return an incorrect report if you do not take actions to protect yourself.  Secondly, assume that the Workers Compensation Insurance Company is your enemy and will not act in your best interest.  The job of a claims adjuster is to save the insurance company money and not to get benefits to you.  While there are responsible claims adjusters , there are many that fall into  the bracket of doing whatever it takes to deny the claim.

Your workers compensation attorney is there to protect you.  Most workers compensation cases are handled on a contigency fee basis.  Please do not fall into the terminated employee bracket, because of a bad drug test.  You must realize that Drug Test are seldom wrong, but the person reading the results is often wrong. The person reading the test results is not the person that gives the test results.  You do have legal recourse and redress.  You can  stay out of that bracket by contacting an attorney immediately after the drug test is given.

Article Submitted by:

  • Joesph Campbell
  • Shinbaum & Campbell
  • 566 South Perry Street
  • Montgomery, Alabama 36106
  • (334)269-4440
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