Unread 01-07-2002, 11:27 AM
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Default Workers Comp and Post Positive Drug Screen

I wanted to see if there are other employers out there who have come across this issue and how it was handled, mostly employers from the state of ohio, but generally to see how you may have addressed this issue in your workplace.

Of course, not all employers have a drug & alcohol policy and every state addresses this issue differently.

In ohio, the state law says that if the injury was "proximately caused by the employee being intoxicated or under the influence of a controlled substance not prescribed by a physician" that they are not eligible for workers' comp benefits.

Until recently, the burden of proof layed on the employer. The claim was allowed and the employer had to fight it. First, the employer had to prove that the employee was intoxicated and under the influence. Secondly, it had to be proven that the impairment caused the incident that caused the injury. The positive drug screen in itself was not good enough. The employer had to get a doctor who specialized in the effects of drugs and alcohol to give an opinion based on the evidence relating to the actual accident.

Many employers complained about the fact this burden was on the employer. The employer wasn't the one who broke the law or negligent by doing the drugs or alcohol in the first place. Plus, what kind of message does that send to the other employees? It didn't help the fact that the Bureau of Workers Comp advocates a Drug-Free Worplace through programs and seminars.

So, the law was amended to say that a "rebuttable presumption" will be made that the injury was caused by the injured worker as long as he/she tested positive (meeting level and testing requirements) and that the employee was notified that a positive drug screen (or refusal) precludes them from workers comp benefits.

The new amendment is the lastest craze in workers comp news, popping up in all safety seminars and drug free workplace seminars put on by the BWC. "As long as you have the postive screen and the notification you are set." "What about when the claim goes to hearing?" "Unless he can prove otherwise, the claim stays denied" ... In theory.

Trying not to be THAT niave, I still requested a doctor's opinion that came back in our favor. I still gathered all the witness statements and Crash Report (It was a vehicle accident) that showed he was cited for failure to control. I even had expert witness statements giving opinion as to the cause of the accident, so that it couldn't be blamed on the vehicle having a malfunction.

Regardless, it went to two hearings at the Industrial Commission and both times the claim was allowed based on the claimant's testimony. He didn't provide any evidence, just his word. He did not have a doctor's opinion stating he wasn't impaired. He did not have a expert opinion that the vehicle was unsafe. Both contentions he claimed at the hearing.

So, to me it seems once the burden changed from the employer to the claimant, the standards for proof and evidence went out the window. It draws into question what kind of case I would have if the employee had refused to take the test at all. Since, all he had to do was testify that he wasn't even intoxicated, the claim would have been allowed, assuming the same standards of evidence apply!

The law makers of this state had good intentions.. but it seems the extremely liberal Industrial Commission was able to find it's loop hole. In fact, the new law only makes it that much harder on employers since now, it's almost impossible to have a claim of this nature denied and all we do by contesting it is provoke the injured worker into going out and getting an attorney who helps the injured worker milk the claim for all it's worth. And then once the claim is allowed, "prove" that I'm just a mean employer trying to wrong injured workers.

We terminated his employment based on the findings of our investigation and since the Industrial Commission has allowed his claim, vindicating him, he is trying to take us and his Union Representative to the Labor Board.
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Unread 01-08-2002, 05:03 PM
Margaret Morford
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Default RE: Workers Comp and Post Positive Drug Screen

Commissions bend over backwards to pay employees. You ought to get some legal advice about appealing to the courts. I think the courts are much more impartial and more likely to follow the law as it's written.

Margaret Morford
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