Safety and OSHA News

Worker on PCP when hurt still sues for comp

drugs

A worker tests positive for PCP right after he’s injured. Is he still able to collect workers’ comp benefits?

As this case shows, it’s sometimes a matter of who the workers’ comp commission decides to believe.

Carl Johnson, a truck driver, was lifting 80-pound boxes when he felt a sharp pain in his shoulder and lower back.

After reporting the injury to his employer, he was drug tested the same day. He tested positive for PCP, also known as angel dust, a hallucinogenic.

Johnson claimed he didn’t use PCP and that he wasn’t impaired at work on the day of his injury.

Arkansas state law says comp can be denied when there is a positive drug test. However, if the worker can prove the drug use didn’t substantially cause the injury, comp can be awarded.

When the case was first heard, an administrative law judge found there was no evidence presented that Johnson appeared impaired.

Is worker’s word enough?

However, when the Workers’ Compensation Commission took up the case, it disagreed. The commission said it was up to Johnson to prove that he wasn’t impaired, and he presented no testimony other than his own to prove that.

He didn’t call on co-workers or customers to testify that he wasn’t impaired the day he was injured.

Johnson took the commission’s decision to the state appeals court.

The court said the burden to prove the PCP in his system didn’t cause his injury was on Johnson.

The court noted, “While Johnson’s testimony about his lifting injury might begin to carry this burden if credited 100%, the Commission was not required to believe him.”

Because the commission didn’t believe Johnson’s testimony, the court upheld the commission’s decision: Comp denied.

However, had the commission found reason to believe that Johnson wasn’t impaired by the drug use, he would have received comp payments.

How should cases where an injured worker tests positive for drug use be handled? Let us know what you think in the Comments Box below.

Cite: Johnson v. U.S. Food Service, Inc., AR Court of Appeals, No. CA09-851, 1/6/10.

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  • jeff thorne

    This is why people need to know that they should not come to work under the influance. I would not dought that if the company wouldnt have drug tested him he would have gotten off scott clean. This is why companies have manditory drug testing in place when an accident orrurs.

  • D.P.

    Work Comp should always be denied if an employee tests positive for drugs or alcohol. If the first test does not satisfy the employee, they should have the right, as in the case of my company, to provide a second sample, at their cost, to refute the original test. In most cases, however, an employer will be given the right to deny the claim if their is a positive drug or alcohol result.

  • Safety King

    Was he lifting the 80 lbs in the same manner he would if he wasn’t on PCP? Was he tripping over his own feet on the way to pick up the box? If co-workers observed his demeanor to be that of a normal human being, he should appeal again. There are some medications that have a halluciongenic affect and are legal prescription items. Was he tested for a particular drug? Was his medical history reviewed? More than 250 over-the-counter or prescription drugs can cause you to test positive on a drug test.
    (http://www.alwaystestclean.com/false_positive_drug_test.htm). Valium reportedly can produce erroneous indications of PCP (Phencyclidine), and other cold remedies can apparently produce false positive drug test of methamphetamine usage. The funny thing is low doses of valium can be used to treat back pain. A 5mg dose will not severely incapacitate or make someone unable to work but it is still just enough to test positive for PCP. My advice is for the employee to get his records together and battle this out. If he was carrying out his duties in a normal fashion and he can prove he was utilizing these type of drugs he may still yet win the case. Also for a company to say someone is officially using PCP is being presumptuous. My eyes are seeing dollar signs right now, comp, back pay, defamation of character, just to name a few.

  • Frustrated HR Mgr

    We are in Ohio and had an employee test positive for cocaine with the exact same situation as this case and we had to pay workers comp. The Industrial Commission said he was injured doing his job and its the company’s responsibility to make him whole. The employee simply filed the claim didn’t submit anything that proves the cocaine didn’t cause his injury. We argued that he was impaired due to his cocaine use and that impairment led to his injury. We fired him for violating our DFWP policy and are still appealing (over a year later) every step of the way with no luck. The employee completed a 2-hour training course and signed an acknowledgement for our Drug Free Workplace Policy. Ohio has a rebuttable presumption law which is supposed to put the burden of proof on the employee who tests positive to prove that the drugs didn’t impair judgement. It sounds great in theory but where is the application of the law?!
    From the Ohio BWC website:
    The rebuttable presumption law (HB223) put the burden of proof on employees to prove that alcohol or drugs in their system were not the proximate cause of a workplace injury. This legislation is intended to curb substance abuse in the workplace.

    The law allows employers to ask for disallowance of a workers’ compensation claim filed by an employee who tests positive on a qualifying chemical test. The law also applies if the injured employee refuses the test. For the claim to be allowed, the injured employee must produce sufficient evidence to prove that being intoxicated by alcohol or under the influence of any of nine controlled substances (not prescribed by the employee’s physician) did not cause the injury.

  • http://www.chasco.com Jonathan Escalante

    when a worker is under ANY kind of substance (alochol/drug) the employee is not at his 100%, therefore the limitation is less than normal thus having/ raising the posibilty to have an accident/injury/kill somebody.
    That is the reason why many companies have a zero tolerance when it comes to that and it’s a shame that an IW who tested positive tried to fight it.
    I will never settle for a situation like this.
    when and injured worker tests positive he is on his own. no question about it.
    in other words, it could have been prevented. Nobody else should pay for the stupidity of others.

  • Marianne Savage

    Most companies have set rules in place about drug use. If he went to work under ANY influence, forget about collecting comp, he should be fired. Ahh, wonderful attorneys and unions, the first thing they advocate is how to teach others how not to take responsibility for thy own actions. Sad, but true.

  • Husky

    In response to Safety King:

    While your points are valid, don’t you think his attorney would have already thought of things? Most of those are pretty obvious items an attorney will use to make a case.

    Food for thought:
    - The other employees (if any) testimonies might have detrimental to his case.
    - If someone is on prescription drugs, they are (at least in my state) asked if they are taking any prescriptions or over the counter medications. If a prescrition was available the case wouldn’t have made it past the comp judge… that simple.
    - Although medical history MIGHT play a part in the decision, it’s not the past that dictates the case. It’s the injury and what is going on at the time of the injury. Case in scenario: Employee has a bad knee but aggrevates it at work and has to receive care for it. WC is required to pay for it (at least in my state) because he aggrevated it at work. Doesn’t matter if he has a history of knee issues. There are ways the employer can help avoid hiring personnel with such history, but it can be a lengthy process and is not fool proof.

  • C.B.

    I have to disagree with Safety King. If the proper specimen testing procedure was followed and the sample went through medical review. The injured worker should have had sufficient time to present any medication he/she was on whether it was over-the-counter or prescribed. That is the reason that system is in place to begin with. I have seen many results come back to me as negative with prescription relating to exactly these cases.

    This isn’t a case of the employer being presumptuous about what drugs were being used. It appears to me that they are only following through with the information they are provided.

  • Rod W

    ok, Let’s see, drug use at work……Duh. Do we really need to be having this conversation. Drug use at work is like asking for trouble. Let’s say for instance someone is using drugs at McDonalds. Not too big a deal unless someone gets hot coffee spilled on them. Now, we have a lawsuit since the worker in using drugs and working.
    Here’s what will happen Mark My Words, if people are awarded comp or allowed to work when under the influence of drugs this will spread like a unstoppable cancer through the workplace.
    Now, You may ask: “Rod, How do you know that?” HMM let’s …OH Yea…..Any stupid reason to have a lawyer sue someone and base it on a precedented case. Drugs in the workplace, you are fired, no comp!

  • MAC

    Safety King,

    It’s more matter of fact. While I admire your knowledge of this subject, your response is too thought out. You need to understand how drug tests are conducted. A drug test can be conducted on site or in a lab and will test for a host of different substances. Check out your CVS and you can get a good idea of what the tests are like, they are 5 panel, 7 panel and 9 panel, and 12 panel. We use a 5 panel test. I prefer a 9 panel that will test for benzodiazepines. It’s really irrelevant what tested for what and this drug can be mistaken for this. A person who is being drug tested has the right to provide prescription drug information. Also, they have the right to have a doctor to sign off that they are able to use this medication while working. At that point, the positive on the drug test is allowed. So, even if Valium showed up as PCP – which a lab will confirm or deny – which I doubt because it is a different type of drug, Mr. Johnson had the right to go to his physician and provide a statement that he was taking a prescribed medication and that this drug test was accurate but this is a medication that is being monitored for by a physician. Then workers comp would be allowed.

    The point to a drug free workplace policy is to insist that your employees follow the guidelines to ensure the safety and wellbeing of others. So, I agree with the gentleman/lady who stated that all workers comp claims should be denied when an employee is found to be using drugs illegally, regardless of the type of drug. If you start nitpicking over whether he could lift the box using 5mg of an illegal substance you are missing the bigger point. Whether he was impaired is not even relevant to me. He’s not supposed to be using the drug according to the law, and our company policy. It’s a lesson learned for him and perhaps for others.

  • EAW

    If you are an employee that is subject to drug testing you should get informed on how drug tests are done and how they are reported. FYI.. If your test comes from the lab as a positive for ANYTHING.. the Medical Review Officer will CALL YOU to see if you have a perscription or if you can explain the result, BEFORE reporting to your employer. If you do not have a reasonable explanition for why you test positive for PCP.. (ha) then you sure as hell don’t deserve comp for an injury.

  • Jody B.

    Safety King says: “There are some medications that have a halluciongenic affect and are legal prescription items.”

    Most businesses have a policy of notifying your supervisor if you are taking a prescription that alters your ability to function safely (Yes, I know HIPPA throws a wrench in this, but the employee could speak to Human Resources or someone else with this level of confidentiality). Without that notification, the company is denied the opportunity to decide if they want to assume the risk of having this employee working in an impaired state, especially operators of vehicles or heavy equipment.

    And while I agree with Safety King that some prescription medications can cause a false positive, those should be declared on the forms that accompany the test sample.

  • Safety King

    To Husky, have you ever heard the statement, if you cannot afford an attorney, one will be provided for you? I wonder how new and wet behind the ears this attorney was.

    To MAC, 5mg of valium is not an illegal substance and but is in the benzodiazepine class of drugs making it a controlled medicatation. Benzodiazepine class drugs also test positive for PCP. I’m not for or against, just playing devil’s advocate. In low doses the drug is used to treat pain and it is not uncommon for someone with back pain to take this medication. While this medication doesn’t severely inebriate a person, it can make a significant impact on this case.

  • Joe2

    To our SafetyAlert team, when a person is injured and tested pos for drugs, or alcoh use on the job compensation should be denied (right after that person is fired). Every company that i know of have policies in place (already) for such activities. I believe every State also has rules in place. Do we need to re-write them? Why would the courts let them selves be bothered with frivolity? Just where is the mind of the administrative law judge. “Can you believe anybody’s testamony who was injuried while on MIND ALTERING DURGS?”…To “Safety King.” I don’t get it! If an employee is taking any medication (perscribed. or not) that may be mind altering, or cause drowsiness, ect, it is his responsibilite to inform the employee at the beginning of his shift, via a perscription from Dr. That will keep him, and the employer out of courts in the eveny of an accident.

  • George Colby

    If he is getting a false positive for PCP because of another prescription drug he is taking, he needs to present records to the court/employer. It’s not a bad idea to keep your HR person abreast of medications ANYWAYS, to avoid situations like this.

    If he denies using PCP but cannot provide documentation of prescription drug use, it’s a black and white case. Drug tests don’t lie. Immediate dismissal should be an option for the employer, regardless of injury status. What if the employee brought a gun to work and shot another employee in the leg, BUT just happend to trip on a box and wrench his back in the process? Breaking the law should supercede any form of compensation, whether it be injury related worker’s comp or not.

  • MP

    I’m sorry…are we really arguing a case with someone who calls himself the safety king, but is basically saying that it’s ok to use a drug as long as it’s a prescription. Since you are so knowledgeable on prescription drugs, which concerns me a little, have you ever read the warning labels? These are not things that should be taken at work. You may not be concerned about your safety but most people are. I don’t care if someone is taking 5mg of valium for a back issue. that drug still has the potential to impair a persons ability to think clearly and perform a job. Companies need to be more strict on this. Most people who value their jobs and their families well being will not be doing PCP even for recreation. There should have been no reason why that was in his system, last time i checked it was an illegal substance, and if it was due to “cold medicine” then i’m pretty sure he would have made that case in all the appeals he had right? Come on bottom line the guy knew he messed up, why give a free ride to people who obviously aren’t too cnoncerned about getting caught?

  • Evelyn

    I AGREE WHOLEHEARTEDLY!! DENY the CLAIM!! Drug use should NOT be Tolerated. Should we required to babysit our employees now – should no one accountable for their own actions anymore?? Our country has really changed. It’s hard to be proud of what we are becoming.

  • Safety Guru

    Look –
    “Proximal cause” has nothing to do with work related injuries and illegal drug and alcohol use. I don’t care if he lifted exactly the same way if he were on crystal meth. In fact there might be arguments that would support your notion that if he were on cocaine and feeling very confident that his demeanor would be better that day and appear even more capable of doing his work with more confidence. In that case would you suggest passing the results over because the condition of the employee did nto contribute to his causally connected work injury?
    Jeff Thorne and D.P. have it right. DOn’t come to work or use drugs or alcohol , period. No other message is acceptable.

  • JE

    In other words, the employee could have an accident/injury, could be drug tested and result positve.
    Safety King says there some types of legal drugs that would show positve or what we call “non negative”. If I am taking Prescribed or Non Prescribed/Illegal drugs I am responsible for my actions; a way to prove wether I am abusing or not is a drug test. When a sample is sent to the lab, the lab can confirm the amount of drug been used, therefore they can say if the employee is taking the amount prescribed or ABUSING the substance.
    I trully disagree with the fact that somebody under the influence of any kind of drug can claim any comp related to his own irresponsible actions. What if they killed someone, oh we’ll knock the door at the widow’s house and say, “sorry, one of our employees was taking prescribed drugs and killed your husband in the accident, and workers comp will pay our employee because he got injured when he killed your husband, but we are sorry”. You think that make sense?? NO.
    Drugs/Alcohol at work = Higher the risk its a common sense.

  • G Smith

    Medical Review of prescription drugs is required under DOT regulations but not all drug screening falls under DOT. Some companies, like mine, do not have DOT positions but follow the DOT guideline anyway. The guy in the article was a truck driver so there must have been opportunity for medical review of prescription drugs.

  • Dave

    After reporting the injury to his employer, he was drug tested the same day. He tested positive for PCP, also known as angel dust, a hallucinogenic.

    Who requested that the driver be tested and under what directive was the driver required to test? Commercial truck drivers can only be tested per federal regulation 49 CFR Part 382 and Part 40. Drivers are required to take a drug and alcohol test after an accident that involved a fatality (Post accident) or pre employment, reasonable suspicion, return to duty or follow up. I didn’t read anywhere in the article where the driver meet any of those requirements.

  • Steve H.

    Safety King should work for the government where useless laws are inacted.
    A person on valium would need to have a prescription for such medication, if not, guilty!
    Drug tests that are confirmed will rule out over the counter medications.
    Doing drugs is illegal!!!!!!!!!!!!! What is the matter with everyone in this country. The issue is simple, don’t do drugs and you won’t have issues and injuries….and this will make the workplace safer for everyone.

  • Safety Director

    Drug testing can certainly be a huge headache, but not testing is worse. Just like the HR person in OHIO, you may have to accept the WC decision, but fight it to the end for violating the DFWP policy. I have seen and heard many that win on a technicality, but are successfully terminated on violation of the company’s drug policy.

  • Dave

    Sorry folks, I forgot to add random testing in my previous post. However, to perform a random drug test on a commercial driver his name must be picked at random and placed on a random pick list. An employer cannot just add a drivers name to the random pick list at will. Since the commercial driver is subject to FHWA regulation, which is very specific in nature, drug tests taken by employees not involved in a safety sensitive jobs described in the federal regulations are not equivalent to the same strict testing standard.

  • R.Cote

    I have to say I’m against drug use but I am against drug tests, what some one does on there time off shouldn’t have any relevance to them at work. Granted someone could come in to work high but someone could also come in drunk.

    Unless a test is done specifically to find out if someone has high enough levels of a drug in their system to have an affect, the results should come back negative. The same way a breathalyzer test is performed. If a breathalyzer test results only came back to say if a person had at some point consumed alcohol in the past three months we wouldn’t use it for anything. Could you imagine if you got into an accident that you were found at fault for, and a cop gave you a breathalyzer test that said you had, at some point of over the past three months consumed alcohol, and as a result your insurance wouldn’t cover the accident? Drug testing should have the same standards as a breathalyzer; otherwise it is just an invasion of privacy.

  • Manny P.

    Interesting discussion. I work in the maritime enviornment. We must comply with the regulations promulgated by the Coast Guard with respect to operating a vessel while intoxicated (33 CFR Part 95). The regulations cover prescription and non-prescription drugs; however, the regulations prohibit a crew member from intoxicated on a vessel at any time regarless if the drug is prescription or non-prescription. We must also comply the chemical testing rules for post-accident testing, which applies in the instant case. If the employee in this case was employed on a vessel, was injured where he sought medical treatment beyond first aid, and was unable to perform routine duties, he would have been required to undergo chemical testing for drug and alcohol use. Under the provisions of the Coast Guard regulations (46 CFR 16.201(b)) when he tested positive for dangerous drugs, he would be presumed to be a user of dangerous drugs. The test is required to be performed under regulations promugated by the U.S. Dept of Transportation (49 CFR Part 40). There are many safeguards built into these regulations to eliminate false positives, and to provide the affected employee to have his sample retested (at our expense), should the employee request it. Finally, our crew members possess Coast Guard issued credentials, and if they test positive for drugs, they are subject to suspension and revocation proceedings against their credentials. Because we work in the marine industry, our employees are not covered by worker’s comp, but rather are covered by the Jones Act (46 USC Section 30104, formerly section 688).

    All of the above is the background for my point. If one of our vessel crew is injured on the job and tests positive for a dangerous drug, they may still be eligible for compensation for the on-the-job- injury (under the Jones Act, they get maintenance and cure, which is the equivalent of worker’s comp). The decision as to who gets compensated is governed by federal maritime law; there are some decisons on file which deny it, while there are a lot of cases that indicate that misconduct related to illegal drug or alcohol use is not a bar to receiving monetary remedies under the Jones Act. While I agree with the decision in the above case, For our vessel crews who are injured and who test positive for drug use in a post-casualty test, we would mostlikely be required to provide maritime remedies until the employee reaches maximum medical cure.

  • Dennis Forsythe

    Personally I have a major issue with drug testing after an accident or injury……If an employee is impaired and kills another employee finding out about impairment after the incident just does not sit well with me. These employees work alone? No one monitors what they do or how they do it? There was no one around to see if this employee was displaying behavior that could indicate the employee was impaired? We also have a drug protocol and drug testing there are no exceptions if someone is impaired or intoxicated (altered) they are gone (But then we are a psychiatric center) And I have had to do the impaired employee procedure with an employee we identified as impaired and the testing validated our observations. But I have never heard of PCP being prescribed for any reason by any medical person and as far as false positives let the employee show how there was a false positive and then retest!!!!! Part of our test is to ask if the employee is on any medication prescribed or over the counter it the employee’s responsibility to inform us of any medications the employee is on. If the medication can cause impairment then alternate duty is implemented if the condition makes the medication permanent alternate duty is offered that may involve a pay adjustment.

  • Joe Mama

    Natural gas pipeline construction is what we do. Random testing is the law or of course when an accident with injuries/or extrordinary damage occurs. The last thing I need is a worker on PCP tapping a gas line, operating machinery, while putting his fellow workers in danger.
    Thank God he was just lifting boxes because sadly, that is all this worker will ever do.

  • MAC

    Safety King –

    I’m going to ask you a question, isn’t valium a controlled substance? If so, illegal use of RX drugs – taking your mom’s vicodin, for example, instead of having a RX of your own is in violation of the law, and in violation of a DFWP. If it’s not, I think it most definitely should be, but shoulda, woulda, coulda. I can have my 17 year old pick up a controlled RX without identification while he can’t purchase cigarettes or alcohol in my state – not that I would want him to do any of these things.

    MAC

  • MAC

    HR Manager – I understand your frustration. To some of the others, “we” as a company do not get the luxury of terminating an employee or “deciding” whether they can work while using a medication. It’s up to their doctor. THey are protected by the ADA. Therefore, our obligation to protect the company is to require the person to go to the doctor with a good Job description. The doctor will need to let us know whether they need to be accomodated, or whether they can do their job while using this medication. An example where it is very clear is in driving positions. It’s illegal for anyone, especially a CDL driver to use pain medication and drive a vehicle and operate certain forms of heavy equipment. Therefore, That’s where we, as employers, have to find alternate ways to accomodate them, or let them go.

  • http://www.safetynewsalert.com/injured-worker-says-drug-use-didnt-impair-him/ Cindy

    Our empployees are required to tell the nurse of any prescription medications they are put on for pain, or are labeled do not drive etc on the label. They are not allowed to use these drugs at work & I stress the reason why. If they need to take them throughout the day they need to be off work until they only need after work. Many bring in a list of all their medication for me took look up information about them & side effects. Our employees are very safety oriented; so even if an employee tries to do this it always comes back to me.

  • Mike J.

    Obviously this guy did not have a prescription safety pauper. If he did it is still a safety issue but not a denial of claim issue. (Hint, it would not have made the the article list). We have a policy on prescription drugs that affect performance. Our employees are required to notify when they are taking them and provide a note from the Dr listing the limitations but not the drug. We then find them a job within the limitations. End of story. If they fail to do so they it is a discipline issue up to and including termination. Where do all you enablers come from?

  • Jody B.

    Dave, he may have signed an agreement to company policies that implicitly state drug tests will be administered following an accident. I am not well versed in DOT regulation, but if your statements are correct it sounds like there has been a great deal of lobbying on behalf of the truck drivers. If I were a truck driver I would welcome testing to help ensure the others I share the road with were not impaired.

    Echoing the consensus of most of the posters on this thread, I say there was no viable reason given for the positive result. Therefore, no comp claim should be paid.

  • R Bennett

    As an analytical chemist for many years, I can assure George Colby that errors in lab tests do happen. Workplace drug tests are not always very specific, and false positives do occur. The manufacturers of the kits are usually reluctant to admit this, but it follows from the type of chemical reaction used for the test. If a sensitive and selective lab method such as GCMS had been used, then the presence of PCP metabolites could usually have been proved.

    If the worker was using valium or similar, and the drug test kit can be shown to give a false positive “PCP” reading, then they might have some sort of grounds for appeal.

    With valium or PCP or drugs in general, there is usually a lower limit, below which there is no noticeable physiological effect. Often, the drug is measureable at lower levels, where it has no effect.

    More definitive (expensive) lab work at the beginning of this case would probably have saved thousands of dollars of legal costs.

  • EAW

    Some companies have policies that test for injury and accident as Non-DOT. The company I work for is looking in to this as we are so restricted by FAA/DOT regulations on when we can test. Unless a supervisor is willing to request a Reasonable Suspicion test, then our hands are tied in regards to personal injuries and these are very costly to the company. 100% guarenteed way to pass a drug test.. DON’T DO DRUGS then if you get hurt, you can have your workers comp.

  • EAW

    The article said he was a truck driver. It doesn’t say what kind of truck. It is possible it was light duty truck and he didn’t need a special license to drive for this company. The article doesn’t say it was a DOT drug test. And by the way .. a Non- DOT test usually involves testing for up to 10 drugs, not just the 5 the DOT test for.

  • JE

    Dave,

    29 CFR, Part 1926, Subpart M, (Fall Protection) Section 501(b)1 “Each Employee on a walking sufrace with an unprotected side or edge wich is 6 feet or more above a lower level shall be protected”
    Our Safety Manual says ” Any employee working 5 feet or more above lower level shall be protected” and every employee working for us sign a contract accepting all of our safety policies and will follow them. So in this particular case I hope they have a policy that states that every employee should be drug tested after every accident. (why would they need to wait until they kill somebody to do a drug test??)
    I totally agree with Steve, WHAT IS THE MATTER WITH EVERYONE IN THIS COUNTRY???

  • JK May

    What was the root cause. Was he wearing a back brace? How and where was he moving the 80# boxes? Did he think PCP gave him super human strength? Thank god all he does is drive a truck as opposed to tapping a natural gas main or operating a crane.

  • Cloud

    To Dave:
    FMCSA also states post accident testing is also required for accidents in which a vehicle is towed from the scene or in which someone is treated medically away from the scene when the CDL driver receives a citation.

  • Safety King

    MAC yes Valium is a controlled substance. The federal auxillary labels on all controlled medications should state, “CAUTION: State and/or federal law PROHIBITS the transfer of this drug to any person other than the person for whom it was prescribed.” Although this may be an issue here. My argument was simply that Valium a controlled substance that may have been prescribed to this individual does test positive for PCP. I questioned the company’s allegation that the employee did in fact test positive for PCP or was it a valium induced result? In any event if the employee was impaired he should not be working. Many permutations of my discussion have infiltrated this discussion and I apologize for the mix up. I hope that clears things up. Being incoherent in any form or any diminished cognitive ability or motor functions should result in benching an employee or providing alternative work that doesn’t require a great deal of alertness and zero impact to safety.

  • New Safety Girl

    If this was a case of taking a prescribed medication and he tested positive, then he should have his medical files as evidence. The “I swear I didn’t take anything” defense is a bunch of BS. If he tested positive and can’t prove that it was a mis-read, he shouldn’t get comp.

    I ask all of the guys that work here to let me know if they are on any medications, perscription or over the counter. That way if something happens, I know if they were on something that made them drowsy or less aware or I can tell them to take the day off for safety reasons. I am able to keep track of stuff like that easier than some safety people are, because the company I work for is small (there are currently have 21 employees, including myself).

  • Aïda

    If this guy tested positive for PCP, and he swears he wasn’t doing PCP, he has a right to have the lab retest what’s left of the sample he provided. This could have been a false positive, which is why it’s important to know drug testing laws well.

    I don’t know why they didn’t take this route.

  • Joe2

    Pardon me, but I thought this article was published to, and read by Safety Professionals. From some of the comments I’ve read, I’m begining to wonder.So much that I won’t comment on them: For those of you who agree with me, may I be allowed to repeat my 1st sentiments regarding the admin law judge. Is anyone now worried that he ruled in favor of W/C? I think our Human resorces has it right, same with company policies regarding testing, and Safety. But it is uninformed judges making wrong decisions that’s causing conflict. Does anyone agree?..I will make one comment to JK May. Do some research on “Back Belts.” Research has proven that they may contribute to, and not prevent back injury while lifting. And because of research, we do not inforce them, and no longer provide them to our employee.

  • Dan

    While I agree with the courts decision to throw out the worker’s comp claim. I hate when people post and target an individual negatively who posts something against their own position. Everyone should be civil, the purpose of these threaded discussions is to get another person’s perspective.

    Like Safety King mentioned he is playing the devils advocate. This demonstrates there is always another side to the story and not everything is black and white, sometimes the world is a little gray.

    As safety professionals we need to be responsive and collect all the facts before making any informed comments or decisions. Please be civil when responding to others.

    This what we do to help address this. (is it bulletproof? no. but so far it is working)
    All new hires must pass a drug test before starting. Part a new employees 1st day orientation, HR talks about our company’s illegal drug and alcohol use policy. I also make a point to the new employee that they are responsible to inform their manager if they are taking any medication that will affect their ability to the job safely. Our company does not want to know the type of medication taken, only that what they are taking affects their ability to the job.

    Unless a company has a random drug testing policy, a company cannot accuse someone suspected of using illegal drugs or alcohol without specific proof. However, a company can look at an employee’s performance. If the alcohol or illegal drug affects their performance, it is easier to dismiss someone for poor performance issues than for drug or alcohol use, without proof of course.

    Dan

  • MP

    The bottom line to this whole story is if that guy was positive that he has never used PCP let alone even know what it is then i’m sure there would have been proof of what caused a false positive and the situation would have been over. I don’t know about any of you but i surely dont want to be the person standing beside the guy who has PCP in his system, regardless of the amount. It obviously would mean he still theoretically uses an illegal substance at any time. So lets say ok joe shmoe only uses illegal substances away from work, well what happens when the effects wear off? Is he more shakey, or unbalanced, hows his mood, his concentration when he is waiting for more of his recreational fun? Those also play into his ability to perform his job. Would you want him driving on the same road your children or wife, husband, or parents drive on? Its not ok in any aspect to abuse a chemical substance and if you have nothing to hide there is no invasion of privacy when a company says “hey…you get hurt you get tested end of story.” If we find it in your system and you can not account for it….GOODBYE…..

  • Mike R

    Everyone on this blog has worked with people that were impaired, I’m sure. Either they were sick, tired, on flu medication, had a hangover, were on drugs, etc. If an employee is injured on the job (through no fault of their own) then they are due Worker’s Compensation (or should be allowed to sue the employer). If an employee is obviously impaired (for any of the above reasons listed) and the supervisor has them work anyway, then they are due Worker’s Compensation.

    This isn’t about whether you agree or disagree with drug use. Its not about illegal vs. legal drugs. It’s about the employer’s responsibility to provide a safe work place and make an employee whole if they are injured on the job (through no fault of their own).

  • http://www.flowps.com BretJT

    We have become such a litigous society that most believe they are part-time lawyers after watching a few episodes of (at this point you insert any lawyer or court based series). For the life of me, a good example of this is I can’t understand why someone with the moniker of ‘Safety King’ would even consider this man had any case at all. First off, he tested positive for PCP; what unscrupulous person wouldn’t say that it isn’t and try to put the burden back on the company? That’s exactly why the law states that it is the employees burden to prove it isn’t. Instead of trying to find a loophole or make an end-around, he should admit his drug use and fix it. Safety King, you would never be my safety man, ever.

  • MAC

    R Cote says: “I have to say I’m against drug use but I am against drug tests, what some one does on there time off shouldn’t have any relevance to them at work. Granted someone could come in to work high but someone could also come in drunk”

    R Cote –

    While I appreciate the privacy act, and may at one time felt similarly, in my career have found the necessity for drug testing. Drug (and alcohol) testing when done properly is done using a randomizer. The person is put on notice BEFORE they take the job what our company drug policy is, and also, if a company elects to implement a DFWP they should be notified, and have an acknowledgement signed by the employee. At that time, the employee is choosing to work for the company under said conditions. Some DFWP is to meet contractual guidelines, some are definitely
    safety related.” You can say that a what a person does on his time is his business, and while I do not agree with restricting legal behavior of employees; such as drinking, such as cigarettes, or tobacco use; I do agree with stating that if you choose to use illegal drugs, or RX drugs illegally or imbibe alcohol on the job, or to wear it affects your job performance (meaning having a drink at lunch or dinner) is not allowed. I currently work in an environment where safety is an issue. Also, a person who uses drugs is typically not in control over themselves or their lives and when they do not have the drugs they are prone to violent outbursts – and this includes marijuana use. Statistics on causes of workplace violence point to drug use as a factor. Once workplaces implement DFWP, their violence incidents decreased. Statistics also point to marijuana as being the most commonly abused substance. My guess is that it is coupled with RX drugs and occasional other recreational use of cocaine, other opiates and RX drugs. These substances work their way out of your system much faster. The caveat to this is they are very addictive so if someone starts using crack on occasion, they are more than likely going to become addicted. Have you seen someone detoxing from Marijuana? or alcohol? or other? They tremor. They become angry. Do you want to work with this person? I want them to find help. I want them to spend their money on treatment then healthy activities so they can lead good lives. I don’t want to pay a drug dealer while paying my employee. So I’ll gladly implement a DFWP whereever I go. I strongly believe in them. One more thing, regarding alcohol, I tell the employees that I train – lunch time is not miller time. We aren’t testing IF they drink alcohol at all. They can’t blow an alcohol level and work for us. Do you want someone operating heavy equipment, on your client site, taking orders from your customer who is unstable? Yes, that’s speculative but in order to make and enforceable policy that is nondiscriminatory, you have to say No to all drugs for all people, all the time. Here is a link of some statistics. http://www.americandtc.com/page.php?content=workplace

  • MAC

    Safety King –

    Thank you very much. I was questioning myself in part because of our relaxed laws on how MD’s prescribe medication. I recently received a RX for vicodin (30 Count) for outpatient surgery Then I went to the dentist and I received another. I didn’t fill both. In fact I lost one in transit. I filled one and flushed it down the toilet. During this time, I decided to ask my safety director, as I looked at my RX bottle, how long do we have to honor this as a valid use RX. The answer is until the expiration which is one year from when it was filled. So all of those who are concerned about this case, think of the liability that we do assume with RX drug use. Now we can ask a doctor, and should, to sign off that the employee can do this job using this substance. But if the doctor indicates that it is in fact okay then we must accomodate.

    I had an employee question PCP on their panel. The issue is they tested positive for another substance. So regardless they are terminated. To me, it was irrelevant. If they did test positive for another substance than they do have the right to retest or have the lab evaluate the specimen to acknowledge what is actually a RX medication using a 9 or 12 panel scan instead of a 5. I believe that is the problem with the tests sensitivity. Most places won’t use the higher panel tests. I like them.

  • Safety King

    MAC Controlled drugs have a currency clause which compels using prescription within 6 months. Non controlled drugs go out to 1 year and in some states upto 2 years.

    Bret, the purpose of this discussion is to explore possibilities. I am not justifying anything as opposed to suggesting what if. Exploring possibilities and discussing it with other safety professionals is what this forum is all about. Personally I’d love the opportunity to have a safety person on board who has the ability to look at multiple perspectives and is open minded. Narrow views and tunnel vision often resolve little to nothing. In my initial argument I explained that valium can give a false positive for PCP and provided a link. This was the case in a military court martial hearing. I applaud your narrow views and quick desire to send folks to the gallows but I’ve lived a little and seen cases come out of injesting poppy seeds giving false positives for opiates. My experience may be convoluted to you but it fits perfectly with my current employer. If you have knowledge of herbology, botony, and pharmacy I’d love to exchange dialogue but for now I must take my leave from this discussion on focus on other matters. I wish you all much continued success in this passionate debate. Let me know when the tempers settle.

  • Mike J.

    Mike R, Please define “impaired”. Is a person “impaired” if they are tired? How about if they have a sprained ankle? Headache? Terminal gas? My point is that impairment is not have a hard and fast ruler to go by. I know guys who look fine after 3 or 4 drinks, until they try to do something complicated like hit the urinal consistantly. Tests have shown that even one drink can slow reflexes for 12 hours. Drugs are no different except most reputable firms have a “0″ tolerance of them meaning if you test positive you are gone, period. You can’t “turn off” impairment with a switch. If it is in your system it has some effect. If a person is impaired by voluntary substance use, (a fault of their own), they have to prove that their self impairment did not cause the injury. Seems reasonable.
    In my 30+ years in safety I have found that the majority of injuries, (and most studies agree), are through an employees falut of their own. Either they ignore safety rules, forget PPE, deviate from procedures etc. If you add in self impairment you are only looking for trouble. People who show up at work after drug use add a fault of their own to any injury that they may get. The truly sad part is that all too often someone else gets hurt as well, that is the truly only thing I see in this as “no fault of their own”.

  • http://PRM-fl.com Butch

    The facts are facts, Jack. If he was smoking or snorting or whatever you do with PCP, had it in his system when tested…. He should be history.

    If he DIDN’T DO IT, He should appeal it and have it removed from his file.

    If he is not sure whether he did it or not, then he is just stupid, and should loose his job for that.

    End of story

  • R Bennett

    The judges and most of the above safety contribitors seem to have taken as definite that the claimant was using PCP and that he was lying about it.
    If the presence of PCP had been proved by good quality lab work, then that would be a reasonable conclusion. From the report above, it seems that this not the case.
    PCP and Valium have fairly similar shapes of molecules and similar chemical reactions. The likelihood of false positives is fairly high in my opinion.

    Inconclusive lab work combined with the legal system often leads to injustice.

  • http://www.flowps.com BretJT

    Safety King, obviously you are very impressed with your portfolio so I want even mention mine; I’m afraid by your standards they won’t measure up anyway. What does valium and military court have anything to do with this? And we were talking about poppy seeds registering false positives decades ago. Sounds like a bunch of overeducated blather that intends to impress, not solve a serious problem. If you want to protect civil rights, get a law degree, or just keep watching those informative law series on TV.

  • Mike J.

    I see no mention of valium in th article, only in the excuse making of the the enablers. You might just as well conjecture about a lottery win. “If only I had the winning number” PCP is not something that just pops up in your system. You can’t catch it from door knobs or toilet seats. The guy used drugs, he got caught, he paid the price. Zero tolerance is zero tolerance. Go renew you ACLU memberships and cry over the MA elections results. As for Safety Pauper, anyone who uses a moniker like that has no real protfolio. It is like people who feel compelled to drive expensive sports cars, it is an attempt to compensate. It amazes me the number of bleeding hearts out there who want to give our money away.

  • Jody B.

    R. Bennett, just to clarify: You’re right we cannot assume the use of PCP. We can simply state that a variance fom the threshold on certain substance categories was exceeded. If, in this case, the cause was due to an otherwise legitimate prescription, protocol about disclosure did not seem to be followed. Both could be reason for termination. I could see a case being made where the comp claim could be considered (“I forgot about that medicine”), but only with a valid medical history .

  • MAC

    Bret – while I may not be in full agreement with Safety King’s statements, I don’t appreciate your antagonistic posts. It steers us away from the topic which I’m certain we all want to feel that we are correct! That’s human nature. That’s all for now!

  • Safety King

    Sigh–MAC, I think I can’t explain this well enough to get through to some folks and I feel like a broken record. A military court-martial is a civilian equivalent to a court case. The valium use in a particular “military court case” generated a false positive for PCP – hence my argument. Not justifying anything just saying a posibility exisits. Why are people only extrapolating what they want from what has been written? As far as moniker would Safety Peasant be more appealing to your scrutiny? Mike there is no mention of valium you are correct. But how unlikely is it for a truck driver to pick up 80 pounds on a regular basis and cause soft tissue injury to his back resulting in a prescription? All the details are not presented in the article and the exclusions are intended to foster collaborative thought about the subject at hand –not attack individuals. The legal system is based on a possibility of doubt. Is this situation possible? Yes–the end.

  • Kristin

    My Question is… If the employee had been determined to have been under the influence at work (if a coworker/customer said he appeared impaired) would the company then have been responsible for sending him home and not allowing him to work? If a worker is obviously impaired, someone should notice and not allow him to work.

  • D.P.

    Absolutely the employer should act upon a suspicion of unde th influence. Just this week, I was in a casual conversation with a superintendent and it was stated that one of his supervisors smelled a strong odor of chemicals on an employees breath after lunch but thye supervisor did not act on this by asking a peer to his advice or to also see if they noticed a smell.
    I acted on this as soon as I knew and noticed a strong odor of alcohol and what smelled like mouthwash. I worked with our HR Manager to confront the employee, in a bargaining unit, and the employee admitted he had been drinking for a while.
    If we are to be leaders, no matter how we persoanlly feel about this subject, then it is with a sense of urgency that we act to remove an employee from the worksite that obviously has no respect for the safety of others, let alone themselves.
    False positives do happen and, unfortunately, mistakes are made, but it is always beter to err on the side of caution and not be deterred by the actions of an administrative law judge.
    In my 25 years in the safety field, I have been involved in many alcohol and drug related situations( over a dozen). Every time, regardless of the excuses of the employee, they tested positive and, after review of the MRO, remained that way.
    Under no circumstance should an employer accept this type of behavior; not if they value all of their employees.

  • Mike J.

    safety pauper; there is also the possibility, to some, that aliens intervened and planted PCP in his blood while performing a premortem autopsy. None of the facts presented back your assumptions. The key here is “reasonable” doubt. It is a similar standard in both military and civilian courts. (Been to both as a witness). he had ample opportunity in multiple proceedings to present evidence such as…oh I don’t know.. maybe a prescription???? If it was indeed valium and he didn’t have a prescription then he is right back in the same boat of using illegal drugs. As for your moniker it reflects hubris and an attempt to somehow elevate your postings above all us peons. After reading your posts I can see why you feel you need this crutch.

  • Frustrated HR Mgr

    D.P. – thanks for the well-stated post. Everyone has a duty not to turn the other cheek when a reasonable suspicion exists. Involving HR in the process is critical so as to prevent liabilities.

  • Dan

    I can’t get over the number of personal attacks that safety king is receiving. This means you mike j and others.

    In Safety Kings own e-mails he states he is doing nothing more than to present other thoughts on this topic. He did not say that he agrees or disagrees with the courts decision. Last time I checked we do not live in a black and white world. Safety King wanted to demonstrate this fact by presenting another perspective.

    I feel really sorry for those companies that employee these people that have to attack contributors to the discussion their narrow mindedness shines through.

  • Mike J.

    Dan, read all of his e-mails. Only after the return comments does he try to deflect the well founded criticism. He trys to add “facts” to the discussion which are not there, Valium???? Ad that to his chosen name and the jabs are well deserved.

  • http://www.flowps.com BretJT

    Dan, please review his very first response on January 19th;

    (Safety King) “Was he lifting the 80 lbs in the same manner he would if he wasn’t on PCP? Was he tripping over his own feet on the way to pick up the box? If co-workers observed his demeanor to be that of a normal human being, he should appeal again. There are some medications that have a halluciongenic affect and are legal prescription items. Was he tested for a particular drug? Was his medical history reviewed? More than 250 over-the-counter or prescription drugs can cause you to test positive on a drug test.
    (http://www.alwaystestclean.com/false_positive_drug_test.htm). Valium reportedly can produce erroneous indications of PCP (Phencyclidine), and other cold remedies can apparently produce false positive drug test of methamphetamine usage. The funny thing is low doses of valium can be used to treat back pain. A 5mg dose will not severely incapacitate or make someone unable to work but it is still just enough to test positive for PCP. My advice is for the employee to get his records together and battle this out. If he was carrying out his duties in a normal fashion and he can prove he was utilizing these type of drugs he may still yet win the case. Also for a company to say someone is officially using PCP is being presumptuous. My eyes are seeing dollar signs right now, comp, back pay, defamation of character, just to name a few.”

    This should be more of an ‘what to do’ other than a ‘what if’ blog isn’t it? ‘If’ is the biggest word in the dictionary. Side issues don’t solve the problem at hand.

  • Dennis Forsythe

    What happened to the Employer having to provide a Safe Environment for all employees? If people are permitted to work and they are “Altered” as is said in most Emergency Rooms then the Employer is not providing a “Safe Environment” for other folk. There is nothing wrong with taking prescription drugs when under a Dr’s care. As it is the Employers responsibility to provide a safe work place it is also an employee’s responsibility to report to their supervisor any medications they may have to take and if there is an effect on their work performance the employee has a responsibility to report that. This is not and issue for debate Safety is everyone’s responsibility and if you have ever lost someone to a careless procedure or to a situation where a participant is impaired or altered or intoxicated whatever you want to call it then look at what is fair all round.

    False readings can be substantiated or dismissed and the employee has a right to medical care. Drs can for the most part give a good accounting as to what a medication will do to the person short term and long term. What is wrong with some clear thinking many jobs if not done properly can cause serious injury and even death…….this is that simple but it has to be addressed seriously. Just as it is important for people to be offered Employee Assistance when they have Drug/Alcohol problems or other things that affect their work but there is no excuse for any type of negligence that causes or allow problems

  • http://www.portofmontana.org Mark Darlow

    Mac summed it up pretty well. The only thing I would like to add is Safety King’s comment about defamation of character, the test proved the employee had PCB in his system. With proof such as this, there cannot be defamation.

  • Dan

    Mark D. just because the “test proved the employee had PCB 9 (sic) in his system. with proof such as this, there cannot be defamation.” As the safety king pointed out early in the threaded discussion, there is a potential for false positives. http://www.clinchem.org/cgi/content/full/48/4/676 explains two other drugs that can produce a false positive for PCP. If you google PCP false positives there are a number of websites that provide information on other over the counter or prescribed medications that can also produce this effect.

    With that said, it is up to the accused to produce information on any medications that he may have been taking. If none can be produced, than the judge in this case made the correct decision.

    The purpose of these discussions is feed off of each others experiences. Each of us may contribute in a slightly different way that was not thought of by someone else.

  • Dan

    BretJT

    I agree with you to a point. The discussion should provide readers the opportunity to express their opinions on if the court got it right and what would we do if we were in the same situation. However, it should also give people the opportunity to give their insight into other variables or factors that would be pertinent to the discussion. Case in point, safety king simply stated that there are other drugs that can generate a false positive. Evident from his post it generated a lot of discussion. Like many who read the background information, I said to myself, he tested positive, he must be guilty. Safety King’s post opened my mind to understand there may be more to this.

    I believe his point is that even though he tested positive and the accused said he did not use PCP, there may be other factors involved. With that said, the accused does have some responsibility to rebuke the claim by producing proof that he was on other medications (over the counter or otherwise). As I said in another post, if the accused cannot produce any contradictory evidence than the court was absolutely correct in their decision.

    These posts should generate “what if” scenarios so when we are presented with an incident we do handle it correctly (what to do).

    btw if you google “false positive drugs”. you will all be surprised at the results, I was.

  • Safety King

    Thanks Dan! If I was able to make one person go Hmmmm then I did my job.

  • EB

    I can sympathize with the worker on this one. If he has been lifting 80 lb boxes for long I can promise you he would have some back issues. I was in maintenance in various manufacturing processes for the better part of 25 years before becoming supervisor and then last year to Safety Coordinator. Those 25 years years have led to back surgery and a lifetime of pain. I could NEVER pass a drug test, but that doesn’t mean i can not do my job. While we do not know the specifics of this case I do know that if a person is using PCP then most everyone around him is going to know it. While i am for drug test, I think they are a tool not a judge and jury. tools are to be used to fix problems, judges and jury’s are used to point blame. Our workforce should not be considered expendable, they are people, mothers, fathers, sons and daughters. WE should be looking for ways to help them, not kick them to the curb… which is what happened to me when I hurt my back. I have been on the receiving end of some of the treatment i have read in these posts, I for one would not want to be the one handing out that treatment to others. Better to try to help build a life than tear it apart.

  • MAC

    EB-

    If you have a RX, then you would pass a drug test. We would request the RX information at the time the presence was detected in the u sample. What I would require is that you take your job description to the doctor, along with an ADA form, and have the doctor sign off that you can perform the job using these RX, with or without which modifications. This is the law. The law is also that they have to be legally prescribed. You must be under a doctors care and you must take your medication as prescribed. My suggestion is that you always seek a doctors recommendation and follow his/her treatment so that your job is never in jeopardy. (PS. I have had an employee with chronic pain cleared by a physician). Also, if you believe that your medication use – because of your pain- has become an issue, you may be eligible for employee assistance! You need to seek the help though. Have a great day!

    Melissa

  • Frank A Bruce

    I think that 80 lbs is too much weight for 1 person to be lifting!

  • Dave

    I, like everyone else, am “second-guessing” this scenario with only a brief overview but ……
    with or with out a legal prescription wouldn’t levels of PCP in the injured workers system and doctors determination of “causal” be very instrumental in a ruling of under the influence?? The injured worker can request a second testing of the sample too. (this would not be the 1st time someone tested positive and denied use).
    I am surprised to see that it is the responsibility of the worker to prove he/she wasn’t under the influence?? Wouldn’t that determination be made by management/supervisor at time of clocking in or being dispatched?? OSHAs expectations are that owners/management are responsible for the workplace (General Duty Claus).
    We all are aware that our system is not perfect. Only by addressing imperfections (potential or real) can we hope to make sound decisions. Take positive “pieces” from this and use in your own workplace. Anger and sarcasm are probably best served on other websites