I often get calls from prospective workers’ comp clients who ask me if their claim can be denied for failing a post-accident drug test. The answer is yes, it can be, and almost surely will be denied. However, whether your employer and their insurer have a right to deny your claim is another question.
Georgia law allows an employer to deny an otherwise payable claim if the presence of any amount of marijuana or other controlled substance is revealed by a drug test given within 8 hours of the workplace accident. If the test is not done within 8 hours of the accident, its results can not legally be used to deny your claim. If you are thinking of refusing to take the test, that won’t work. Refusing to submit to a drug test has the same effect as failing the test.
Just because you failed a test or refused to take one doesn’t mean that you don’t have any rights with respect to your work injury. While the failure or refusal does allow for a denial, it only creates what the law calls a “rebuttable presumption” that your accident was caused by the use of the illegal substance. In other words, the failed test places the burden on the injured worker to prove that their injury WAS NOT caused by the use of marijuana or other drug.
Our Workers' Compensation Attorney's in Atlanta Can Help Prove Your Case
An experienced workers’ compensation attorney can present evidence in the form of witness testimony, medical records, or other documents that can provide proof to a judge that your injury was not caused by illegal drug use.
Helpful testimony could include a co-worker saying that you were not acting impaired at the time of the accident, or testimony from you or others that you had worked for several hours without incident that day before your accident happened.
Sometimes, the undisputed facts regarding how the accident occurred can be sufficient to meet the burden. For example, if you are in a warehouse stacking boxes on a pallet, and a co-worker loses control of a forklift and crashes into you, the fact that you may have marijuana in your system obviously had nothing to do with you getting injured.
Your attorney can also challenge the legitimacy of the test itself, including the chain of custody of the urine sample you provided.
It is vital that you retain an attorney who has experience with drug test cases to help you if you failed or refused a post-accident drug screen. They can help you get necessary medical treatment, and ultimately get you compensation for your injury claim.