This case provides a couple of lessons for employees. First, report an injury as soon as it happens. Second, don’t take someone else’s pain medication.
Some workers might think they’re doing their employer a favor by working through pain and not reporting it.
That’s what Paul Vigil, a truck driver for Apex Transportation, Inc. in Colorado, thought – and did. He’d worked for Apex for several years when he injured his shoulder on the job.
Vigil didn’t report his injury right away and didn’t seek medical attention because it was the busy season for Apex and he thought the pain would just go away.
When the pain didn’t go away, his brother gave him a prescription pain pill. Vigil took it, but the following day his pain returned. That’s when he decided to report his injury and seek medical help.
The physician’s assistant who saw Vigil diagnosed a shoulder injury but didn’t impose any work restrictions and said the truck driver could go back to work.
But Vigil never returned to work for Apex. Why? Apex had a zero-tolerance drug policy that required employees to get a drug screen when injured at work.
Vigil’s drug screen turned up morphine which was in the pain pill he took. Since he didn’t have a prescription for the pill, he was fired immediately.
Several days after being fired, Vigil saw a doctor who prescribed pain medication and said he shouldn’t go back to work.
After that, Vigil filed for total temporary disability (TTD) benefits under workers’ comp.
An administrative law judge (ALJ) found Vigil’s loss of income was due to the fact that he violated Apex’s drug policy, not because he was injured. Therefore he wasn’t eligible for TTD benefits.
Vigil argued his condition had worsened after he was fired, and the real reason he couldn’t work was because of the injury. But the ALJ found there wasn’t sufficient evidence his injury got worse.
Under Colorado law, an employee who is responsible for being fired from his job can be denied TTD benefits. However, the worker may be entitled to TTD benefits after being fired if his wage loss can be attributed to a worsened condition caused by the work injury.
The Industrial Claim Appeals Office reversed the ALJ’s decision, finding that because the doctor took Vigil off work nearly two weeks after the physician’s assistant hadn’t imposed any work restrictions, his condition had worsened. The panel ordered TTD benefits for Vigil. Apex appealed to a Colorado court.
Did his condition actually get worse?
The appeals court didn’t buy the appeals panel’s line of thought.
Sure, the doctor increased Vigil’s work restrictions. But Vigil didn’t show his shoulder injury worsened, according to the court.
“We know of no case that has held that an increase in work restrictions is per se evidence of a worsening condition,” the court wrote in its opinion.
Therefore, the appeals court vacated the appeal panel’s decision and reinstated what the ALJ originally ruled – that Vigil had lost his job because he violated the Apex zero-tolerance drug policy not because of his injury. The court denied Vigil workers’ comp TTD benefits.
Let’s consider how this case might have turned out differently. If Vigil had reported his injury right away and sought immediate medical help, he might have been able to secure his own prescription for pain medication.
Vigil wanted to stay at work because it was the busy season for Apex. Earlier treatment may have allowed him to do that.
Even if he had to stop working because of the pain, he wouldn’t have been disqualified from workers’ comp benefits for taking medication for which he didn’t have a prescription.
Message to workers: All it takes is one pill given to you by someone else … other than a doctor.
A reminder: Workers’ comp laws vary from state to state. But Colorado isn’t the only state with a provision for denying comp if an injured employee fails a drug test.
Have you ever had a situation in which an employee performing a safety sensitive job (like driving a truck) took someone else’s pain medication? Does your company have a zero-tolerance policy for such situations like Apex? Let us know how your company handles this type of situation in the comments.
(Apex Transportation Inc. v. Vigil, CO Court of Appeals, No. 13CA0016, 3/13/14)
