Abuse of Drug Testing by Carrier Doctors

As the Olympics draws to a close, it is appropriate to compare the drug-testing done for Olympic athletes versus those done to Texas Workers.

Many states, including Texas, have a provision that creates a rebuttable presumption of intoxication when someone tests positive for drugs or alcohol.

However, a new use of drug testing is gaining in prominence in Texas Workers Compensation law that is an abuse of the workers’ compensation system.

As the Olympics draws to a close, it is appropriate to compare the drug-testing done to Olympic athletes versus those done to Texas Workers.

Many states, including Texas, have a provision that creates a rebuttable presumption of intoxication when someone tests positive for drugs or alcohol.

However, a new use of drug testing is gaining in prominence in Texas Workers Compensation law that is an abuse of the workers’ compensation system.

In Texas, there are two kinds of doctors who can see an injured worker besides the treating doctor and the referral doctor. Those two kinds of doctors are the Required Medical Exam doctor and the Division of Workers Compensation Designated Doctor. Normally, these doctors simply conduct an exam and render an opinion on a matter, but recently, certain overzealous doctors have started conducting drug testing of the injured worker at the end of the claim.  This is a very serious matter because these doctors are then using the test results to justify ridiculously low compensation benefits and it is not something that the legislature had in mind when they wrote the law.

A Required Medical Exam doctor or RME doctor is a doctor that sees the injured worker on behalf of the insurance company. The insurance company has to get prior approval from the Division of Workers Compensation and the insurance company can usually only request one exam every six months. The RME doctor is the only doctor allowed to examine the worker and there is no provision in the law for the RME doctor to conduct any additional tests such as drug testing. See Rule 126.5.

A Designated Doctor or DD is a doctor appointed by the Division of Workers Compensation and is appointed to serve in a supposedly neutral capacity for the State of Texas to give an opinion on certain medical issues. A Designated Doctor can perform “additional testing necessary to resolve the issue in question” and is authorized to refer the worker to other doctors for testing when the DD is not qualified to fully resolve the issue in question.  Rule 127.10(c).

What we are seeing are doctors that are performing drug testing on injured workers as part of the examination. Then, if the drug test comes back positive, the doctor is using this positive finding as a basis for claiming some other problem is the cause of the injured worker’s complaints. Usually, the doctor attacks the worker’s credibility, saying that the positive drug finding is indicative of habitual drug or alcohol abuse. Of course, the examining doctor does not take into consideration prescription medications that may be the cause of the positive drug screen. And even when the prescription medication is not the cause of the positive result, the doctor will assume the worker is a habitual drug abuser that is looking to scam the insurance company out of workers’ compensation benefits.

What does this have to do with the Olympics? The threshold for testing positive for marijuana in the Olympics is 150 ng/ml. It is set to that level because those in charge of the Olympics understand that marijuana is a recreational drug that is used by enough athletes that the cutoff threshold needs to be sufficiently high to only detect those that use drugs during competition when it would affect performance. In other words, we don’t want athletes losing out on sponsorship money and causing issues with older, more conservative TV viewers back home, just because they happened to smoke a joint a day before the competition. Because Texas workers’ compensation law allows for workers compensation judges to consider positive drug findings without regard of the amount, the stigma of testing positive for marijuana is enough cost a person thousands of dollars in workers compensation benefits. Injured workers need to consult with an attorney prior to any medical exam that is not conducted by their own doctors.

We celebrate our athletes and we tolerate their recreational use of marijuana. But for the hard working citizens of the State of Texas who get injured, usually through no fault of their own and then turn to their only remedy, Texas Workers Comp—they don’t get a medal, they get kicked to the curb.

Injured While Driving to Work: Implications of Texas Workers Compensation Insurance

Each day, Texas residents drive to and from work, expecting to arrive safely. On many occasions, employers may provide either (1) company-owned transportation or (2) financial reimbursement for travel expenses using a private vehicle. Both situations would be in furtherance of the responsibilities of the job and are directly connected with the performance of the employment. 

But what happens when the commute goes wrong and there’s an accident? If you become injured, who will pay for your injuries and damages? Does your employer carry workers compensation insurance? If they do carry it, are you entitled to receive benefits from your employer’s workers compensation insurance carrier?

The answers to these questions are complex and fact intensive. Not all cases are the same and not all injuries are the same. An attorney who specializes in workers compensation law will be able to assist you at every step of your workers compensation case. 

The law in Texas under the Workers Compensation Act provides for employee compensation when injuries arise out of and in the course and scope of employment for which compensation is payable. For an injury to arise in the course and scope of employment it must: (1) relate to or originate in, and (2) occur in the furtherance of, the employer's business. Travel to and from work generally does not meet this test, unless the employee's travel was pursuant to express or implied conditions of his employment. The claimant has the burden to prove that he was injured in the course and scope of his employment. (TWCC APD No. 931006) Whether an injury occurred in the course and scope of employment is a fact question that must be determined by the hearing officer. (TWCC APD No. 971607)

A recent Texas case helped clarify these legal issues. In SeaBright Inc. Co. v. Lopez, an employee was assigned to work at a remote job site. The employer provided a company vehicle but did not pay for the employee’s travel time to and from the job site. One morning, the employee was killed while driving to work with two other employees. The decedent’s wife sought benefits from the employer’s workers compensation carrier, but the insurance carrier denied the claim for benefits because the insurance carrier believed the employee was not on the job (a.k.a., the course and scope of employment) at the time of the accident.

The court concluded that the employer's business called for employing specialized, non-local work crews in constantly changing, remote locations on temporary assignments. It required employees to obtain temporary housing and travel from that temporary housing to that temporary, remote location. Based on these facts, the court held that the plaintiff had conclusively established that her husband was acting in the course and scope of his employment at the time of the accident and was entitled to benefits.

As mentioned above, not all cases are the same. But with the help from an attorney that is board certified in Texas workers compensation law, you will receive skilled and knowledgable representation. 

 

 

National Media Examines Workers Compensation Disparities

 Two things happened this week to raise the consciousness of the public towards the inadequacies of workers compensation. First was a major piece of reporting by Pro Publica and NPR that conducted an exhaustive examination of workers compensation benefits, state by state. You can find the articles here:

www.propublica.org/article/photos-living-through-california-workers-comp-cuts

www.propublica.org/article/the-demolition-of-workers-compensation

The reporters chief findings:

  • Since 2003, legislators in 33 states have passed workers’ comp laws that reduce benefits or make it more difficult for those with certain injuries and diseases to qualify for them.
  • Where a worker gets hurt matters. Because each state has developed its own system, an amputated arm can literally be worth two or three times as much on one side of a state line than the other.
  • Many states, Texas among them, have not only shrunk the payments to injured workers, they’ve also cut them off after an arbitrary time limit — even if workers haven’t recovered.
  • Employers and insurers increasingly control medical decisions, such as whether an injured worker needs surgery.

As a workers compensation attorney who has been practicing since before 2003, I can attest that changes made to Texas' system that occurred after 2003 were the second such effort to reduce workers compensation benefits and make them more difficult to obtain.

Even though other states made changes to their workers' compensation schemes in part due to the success Texas has had reducing benefits, most of those states still did not take the more extreme path of reducing benefits to injured workers to the levels that Texas has done. This graphic is illustrative:

Texas Far Behind Other States in Workers' Compensation BenefitsTexas Far Behind Other States in Workers' Compensation BenefitsThose of us representing injured workers have complained for a long time that there is a race to the bottom amongst the states in what is being paid to injured workers. That race is on the verge of breaking the system. The only question is will Republicans in safely gerrymandered districts have the courage to fix the system before it breaks?

The second thing to raise some consciousness was a report put out by OSHA which can be found here:

www.dol.gov/osha/report/20150304-inequality.pdf

That report states another aspect of workers compensation law that has long been complained about by those of us who represent injured workers:

The costs of workplace injuries are borne primarily by injured workers, their families, and taxpayer-supported components of the social safety net. Changes in state based workers’ compensation insurance programs have made it increasingly difficult for injured workers to receive the full benefits (including adequate wage replacement payments and coverage for medical expenses) to which they are entitled. Employers now provide only a small percentage (about 20%) of the overall financial cost of workplace injuries and illnesses through workers’ compensation. This cost-shift has forced injured workers, their families and taxpayers to subsidize the vast majority of the lost income and medical care costs generated by these conditions.

That is, the public, not the workers' compensation insurer and not the business that purchases the insurance, bears the primary burden for the costs of injured workers. This occurs through the cost-shifting of workers onto other forms of payment.

I cannot even begin to count the number of times I have heard adjusters state that a workers isn't being disenfranchised because the worker can just apply for social security disability. Likewise, we frequently have problems on cases with doctors advising injured workers to just put their injury on medicaid so that the doctor can avoid all the pre-authorization hassles that comes with workers compensation.

One problem is the race to the bottom that impacts all injured workers. The public's attitude is "As long as it doesn't affect me, I don't care. Out of sight, out of mind." But this report confirms that it does affect the public. When the system finally breaks, remember that.

What to Watch For if You Are an Independent Contractor

According to a New York Times article, the feds are cracking down on employers that classify employees as independent contractors. 

Classifying regular workers as independent contractors allows companies to get around minimum wage, overtime and antidiscrimination laws. Workers classified as independent contractors also do not receive unemployment insurance if laid off or workers’ compensation if injured, and they rarely receive the health insurance or other fringe benefits regular employees do. Of course, this results in substantial savings for the employer. According to the article, the most often misclassified workers are truck drivers, construction workers, home health aides and high-tech engineers. 

Sometimes, though, the employer may have to provide workers compensation coverage to employees in order to bid on government contracts. Or, in the construction field, a contractor may require a subcontractor to furnish workers compensation coverage for employees in order to protect the contractor. Sometimes in these situations the employer will provide workers compensation coverage but will deduct the premiums from the compensation paid to workers classified as independent contractors. In these situations, very specific rules apply for the employer to classify the workers as independent contractors. Otherwise, it is illegal to withhold workers compensation premiums from a worker's check. At our offices, we currently represent a group of employees who faced this very problem. Tens of thousands of dollars were withheld from the workers to pay workers compensation premiums.

If your employer classifies you as an independent contractor, make sure you are truly independent. Who has the right to control your work? Do you have the ability to independently profit from your work? Have you made a significant investment in equipment or supplies to perform your work? Is your work with your current employer temporary? Who sets the hours? Who sets the pay? Now, if you are truly and independent contractor, look at the check you receive and see what is taken out. If workers compensation premiums are withheld, see a lawyer to determine if it is legal for you to be required to pay the premiums from your check.

What To Do When You Are Injured On The Job

When injured on the job be sure and follow these steps:

  1.  Immediately report the injury to your supervisor. Make sure that the injury is properly logged or recorded by your supervisor.
  2. Request medical attention for your injury and take note of the names of the doctors who are treating you. Remember, you are not required to see a company doctor.
  3. Make sure to get contact information from any witnesses. If possible, use your phone to take photographs of the accident site. Take photographs of your injuries as well, both before and after treatment.
  4. Do not sign anything, or give any recorded statements, until you have spoken with an experienced workers compensation lawyer. You may be signing away your rights without even knowing it.
  5. If you are injured, stop working until released to work by your doctor. Additional labor could severely aggravate your injury. If your doctor releases you to light duty, you do not have to return to work unless your employer agrees in writing to abide by your doctor's restrictions.
  6. Contact an experienced workers compensation attorney as soon as possible after your injury.