Workers' comp claim denied because of a positive drug test?

Every now and then I receive a call from a potential client who asks whether the insurance company could deny their claim based upon a positive drug test, and if so, whether there was anything I could do to help them. In response, I ordinarily explain that a positive drug test doesn't help matters, but that it doesn't mean the insurance company has a valid basis for denying the claim.

You see, Georgia law doesn't say that an insurance company can deny a claim based upon a positive drug test; in general, it says that an insurance company can deny a claim if the injured worker was intoxicated and the accident occurred as a result of the intoxication. In other words, an injured worker can be entitled to workers' comp benefits even if he or she was high as kite when the accident occurred. They simply need to show that their intoxication in no way caused or contributed to their accident.

For example, if the injured worker was a passenger in a delivery truck when the truck was struck by an oncoming driver (who was at fault), then the injured worker would be entitled to workers' comp benefits even if his positive drug test was valid, and even if he admits that he was high as a kite.

There are other cases in which a positive drug test may not be valid or admissible, and in those cases, the injured worker may also be entitled to workers' comp benefits as well. Of course, each case is different and these issues can be complicated. For this reason, we strongly encourage you to seek the help of an experienced workers' compensation attorney who can analyze your case and determine the best way to proceed.

How much time do I have to file a workers' compensation claim?

You have one (1) year from the date of injury to file a claim with the State Board of Workers' Compensation.  If, during that year, you received remedial treatment from your employer for your work-related injury, you have one (1) year from the date of the last remedial treatment from your employer to file a claim.  Also, if you continued to work after your injury until you were forced to stop working due to a gradual worsening in your condition, you may be able to file a claim within one (1) year of the date you were forced to stop working.

If you received weekly income benefits as a result of your work-related disability, you have (1) year from the date of the last remedial treatment or two (2) years from the last payment of weekly income benefits to file a claim for additional compensation.

If your claim is based on an occupational disease, you have one (1) year from the date you became aware of your disease or, in the exercise of reasonable diligence, should have know of the relationship between your condition and its employment.  Any claim based upon an occupational disease must be filed within seven years of the last date you were exposed to the work-related hazards that caused your disease; however, if your claim is based upon a diagnosis of asbestosis or mesothelioma resulting from exposure to asbestos, you have one (1) year from the first date of disability following your diagnosis to file a claim.

While we strongly recommend filing a claim as quickly as possible, there are circumstances in which an injured worker can file a claim after the applicable deadline (statute of limitations) in his or her case; therefore, if you have missed the applicable deadline in your case, or if you think you are close to missing the applicable deadline, we strongly recommend that you immediately contact an experienced workers' compensation attorney.

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Board Rule 82. Statute of Limitation and Procedure for Filing Claims

(a) Any defense as to the time of filing a claim is waived unless it is made no later than the first hearing.

(b) A party filing a claim should file Form WC-14 with the Board and serve a copy on all other parties.

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O.C.G.A. § 34-9-264. Compensation for loss of hearing caused by harmful noise; procedure for measuring degree of hearing impairment; eligibility for compensation; liability of employer

(a)  As used in this Code section, the term:

(1)  "Harmful noise" means sound in employment capable of producing occupational loss of hearing as defined in paragraph (2) of this subsection.  Sound of an intensity of less than 90 decibels, A scale, shall be deemed incapable of producing occupational loss of hearing as defined in this Code section.

(2)  "Occupational loss of hearing" means a permanent sensorineural loss of hearing in both ears caused by prolonged exposure to harmful noise in employment.

(b)  Compensation based on 66 2/3 percent of average weekly wages, subject to limitations of Code Section 34-9-261, shall be payable for loss of hearing caused by harmful noise, subject to the following rules which shall be applicable in determining eligibility, amount, and period during which compensation shall be payable:

(1)  In the evaluation of occupational hearing loss, only the hearing levels at the frequencies of 500, 1,000, and 2,000 cycles per second shall be considered.  Hearing losses for frequencies below 500 and above 2,000 cycles per second are not to be considered as constituting compensable hearing disability.  No consideration shall be given to the question of whether or not the ability of an employee to understand speech is improved by the use of a hearing aid.  The board may order the employer to provide the employee with an original hearing aid if it will materially improve the employee's ability to hear;

(2)  The percentage of hearing loss shall be calculated as the average, in decibels, of the thresholds of hearing for the frequencies of 500, 1,000, and 2,000 cycles per second.  Pure tone air conduction audiometric instruments, properly calibrated according to accepted national standards such as American Standards Association, Inc. (ASA), International Standards Organization (ISO), or American National Standards Institute, Inc. (ANSI), shall be used for measuring hearing loss. If more than one audiogram is taken, the audiogram having the lowest threshold will be used to calculate occupational hearing loss.  If the losses of hearing average 15 decibels (26 db if ANSI or ISO) or less in the three frequencies, such losses of hearing shall not constitute any compensable hearing disability.  If the losses of hearing average 82 decibels (93 db if ANSI or ISO) or more in the three frequencies, then the same shall constitute and be total or 100 percent compensable hearing loss.  In measuring hearing impairment, the lowest measured losses in each of the three frequencies shall be added together and divided by three to determine the average decibel loss. For each decibel of loss exceeding 15 decibels (26 db if ANSI or ISO) an allowance of 1 1/2 percent shall be made up to the maximum of 100 percent which is reached at 82 decibels (93 db if ANSI or ISO).  In determining the binaural percentage of loss, the percentage of impairment in the better ear shall be multiplied by five.  The resulting figure shall be added to the percentage of impairment in the poorer ear, and the sum of the two divided by six.  The final percentage shall represent the binaural hearing impairment;

(3)  There shall be payable for total occupational loss of hearing 150 weeks of compensation and for partial occupational loss of hearing such proportion of these periods of payment as such partial loss bears to the total loss;

(4)  Except in instances of preexisting loss of hearing due to disease, trauma, or congenital deafness in one ear, no compensation shall be payable under this Code section unless prolonged exposure to harmful noise in employment has caused loss of hearing in both ears as hereinafter provided;

(5)  No compensation benefits shall be payable for temporary total or temporary partial disability under this Code section; and there shall be no award for tinnitus or a psychogenic hearing loss;

(6)  The regular use of employer provided protective devices capable of preventing loss of hearing from the particular harmful noise where the employee works shall constitute removal from exposure to such particular harmful noise.  No compensation benefits shall be payable for occupational loss of hearing caused by harmful noise if the employee fails to regularly utilize the employer provided protection device or devices which are capable of preventing loss of hearing from the particular harmful noise where the employee works;

(7)  The employer liable for the compensation in this Code section shall be the employer in whose employment the employee was last exposed to harmful noise in Georgia during a period of 90 working days or parts thereof; and an exposure during a period of less than 90 working days or parts thereof shall be held not to be an injurious exposure; provided, however, that, in the event an insurance carrier has been on the risk for a period of time during which an employee has been injuriously exposed to harmful noise and if after such insurance carrier goes off the risk said employee has been further exposed to harmful noise, although not exposed for 90 working days or parts thereof, so as to constitute an injurious exposure, such carrier shall, nevertheless, be liable;

(8)  An employer shall become liable for the entire occupational hearing loss to which his employment has contributed; but, if previous deafness is established by a hearing test or other competent evidence, whether or not the employee was exposed to harmful noise within six months preceding such test, the employer shall not be liable for previous loss so established, nor shall he be liable for any loss for which compensation has previously been paid or awarded.  The employer shall be liable only for the difference between the percentage of occupational hearing loss determined as of the date of disability and the percentage of loss established by preemployment and audiometric examinations excluding, in any event, hearing losses arising from nonoccupational causes.

(c)  No claim for compensation for occupational hearing loss shall be filed until six months have elapsed since exposure to harmful noise with the last employer.  The last day of such exposure shall be the date of disability.

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O.C.G.A. § 34-9-291. Effect of false representations by employee regarding previous disability from or compensation for occupational disease

No compensation shall be payable for an occupational disease if the employee, in the course of or in the course of entering into the employment of the employer by whom the compensation would otherwise be payable, falsely represented himself in writing to such employer as not having previously been disabled, laid off, or compensated in damages or otherwise because of such disease.

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