When someone is involved in a work accident that involves a violation of a safety rule the insurance company will try to take a 50% reduction in benefits. They can do this without proving anything, so it is particularly hard on the injured worker. In these cases, temporary disability is paid at 2/3 of your average weekly wage. Reduce that by 50% and there is not much left to live on. The only good news here is that medical benefits are NOT affected by this reduction so they are still on the hook to pay for all of your medical expenses.
So what do you do when this happens? You have the right to contest the safety rule violation by applying for a hearing on the issue. I would strongly suggest that you do not do so without an attorney because you only have one shot to get it right and you don’t want to end up saying that you forgot to bring in the right evidence in for the hearing. The insurance company has the burden of proving that there was an actual enforced safety rule that was violated, and they also have to show that the violation led to your injury. As an example if someone failed to wear a seat belt and got into a accident while working, then they would likely get a safety rule violation. But you have to also determine if the injury would not have occurred if it weren’t for the failure to wear the seat belt. If the insurance company does this to you contact an attorney right away because it can take up to 120 days to get a hearing.
Alcohol and marijuana are generally prohibited by every employer so if a drug test taken after an injury determines that either one of these was in the injured party’s system it will trigger a number of problems. First, and likely foremost, the insurance carrier is allowed to take a 50% reduction of benefits if there is a positive test. They have the burden of proof so it can be disputed, but they do not have to prove anything to start taking the reduction. A positive test can also trigger a 50% safety rule violation if the employer has an established rule that prohibits being intoxicated or high at work. Fortunately its not a combination of the two so they can only take one 50% violation.
Since the insurance company has the burden of proof, they are required to provide a second sample of the blood test that can be independently tested if they allege that you have a drug violation. If the insurance company does this, hire a lawyer immediately because you do not want to go to a hearing on this issue without help. The insurance company will use the hospital records or clinic test and believe that this is all that they need to prove their point. An attorney will probably enlist the help of an expert to make sure that the test was accurate and that there is not any flaws in their case.
If you’ve been hurt at work, give me a call. Most Workers Compensation attorneys (myself included) will evaluate your case for free or talk with you to make sure we are a fit, all it takes is a call. Always ask your prospective lawyers how long they have worked in that area of the law; I have over 30 years of experience in this field. If you have been hurt and want someone to fight for you, call me at 303-792-5595 or submit a request using the button on the right side of the page to have someone from our office contact you.