GQ Corner

Q. The injured employee sustained an otherwise compensable injury on June 1, 2018, but failed to seek medical treatment until June 5, 2018. During the initial examination, she tested positive for marijuana. Can I deny, and will I prevail?

A. A positive drug test, regardless of when performed, is enough to create the presumption of intoxication. There is no authority that such can be rebutted solely by the fact that it did not occur on the date of injury. However, alone, it will not likely stand as a basis for finding the injury to have occurred while in a state of intoxication. For this you will need something more, such as an admission that the claimant did not use marijuana after the accident but before the testing. For instance, if you can establish that she waited to seek treatment so that the test would come back negative, then you have a better chance of prevailing.

Q. The injured employee opted to treat out of network with his primary care physician, who has taken claimant off of work for at least the next 30 days. Since the claimant is treating out of network, can I dispute disability until he presents to a doctor within the network?

A. There is no basis to dispute disability on for the sole reason that the restrictions are provided by a non-authorized doctor who is treating the employee. Disability is a fact question, independent of the opinion of a doctor, authorized or not. With that being said, you are not required to pay disability solely on the basis of a conclusory opinion from either an authorized or unauthorized doctor. Instead, you are required to consider all of the facts and circumstances to determine whether the totality of the circumstances supports the claim that the employee is unable to obtain or retain employment at the preinjury wage.