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Tuesday, October 25, 2016

Should You Consent to a Drug Test Following a Work Injury?

Is an employee required to take a drug test after being injured on the job in North Carolina and will it affect the Employee’s Workers’ Compensation Benefits?

Many companies have a policy in place that require an employee to submit to a drug test following an accident or injury or at other times.  If a company has a consistent and clear policy in effect regarding drug testing that it has been using prior to the injury and the employee refuses to take a drug test, then the employee may be terminated.  However, refusing to take a drug test is not grounds to deny workers’ compensation benefits and the employee should still be entitled to workers’ compensation benefits, if otherwise eligible.   However, under North Carolina law, no compensation is paid to an employee for injury or death if under certain circumstances he or she was intoxicated or under the influence of a controlled substance.  Therefore, if an employer can prove the employee was actually impaired benefits may be affected, but a simple drug test is not controlling.

See The North Carolina Statute Section 97-12 below:

§97-12. Use of intoxicant or controlled substance; willful neglect; willful disobedience of statutory duty, safety regulation or rule.

No compensation shall be payable if the injury or death to the employee was proximately caused by:

His intoxication, provided the intoxicant was not supplied by the employer or his agent in a supervisory capacity to the employee; or
His being under the influence of any controlled substance listed in the North Carolina Controlled Substances Act, G.S. §90-86, et seq., where such controlled substance was not by prescription by a practitioner; or
His willful intention to injure or kill himself or another.
When the injury or death is caused by the willful failure of the employer to comply with any statutory requirement or any lawful order of the Commission, compensation shall be increased ten percent (10%). When the injury or death is caused by the willful failure of the employee to use a safety appliance or perform a statutory duty or by the willful breach of any rule or regulation adopted by the employer and approved by the Commission and brought to the knowledge of the employee prior to the injury compensation shall be reduced ten percent (10%).

“Intoxication” and "under the influence" shall mean that the employee shall have consumed a sufficient quantity of intoxicating beverage or controlled substance to cause the employee to lose the normal control of his or her bodily or mental faculties, or both, to such an extent that there was an appreciable impairment of either or both of these faculties at the time of the injury.

A result consistent with “intoxication” or being “under the influence” from a blood or other medical test conducted in a manner generally acceptable to the scientific community and consistent with applicable State and federal law, if any, create a rebuttable presumption of impairment from the use of alcohol or a controlled substance.

The burden of proof shall be upon him who claims an exemption or forfeiture under this section. (1929, c. 120, s. 13; 1975, c. 740; 2005.)

If you're injured on the job and asked to take a drug test, you should consult an attorney for advice before doing so. Call our office at 919.277.0161 for a free consultation.

Friday, October 14, 2016

What's Your Workers Compensation Claim Worth?

What’s Your Workers’ Compensation Case Worth?

This is by far the most common question early in my representation of an injured worker.  While it is impossible to place an exact value on your case for settlement purposes, an experience attorney can evaluate your expected likely benefits under the statutes and provide an estimate of recovery.  One important thing to understand it that calculations of certain benefits are based on the injured worker’s average weekly wage.  So two employees may have the same exact injury, but if one employee was earning $200.00 a week in wages and the other employee was earning $800.00 a week in wages, the employee earning the higher wage rate would receive a higher amount.

See the North Carolina Industrial Commission Website for general information here.

If you have been injured on the job, call my office, I will give you an opinion about the value of your claim based on the available facts.

Does Your Employer Consider You and Independent Contractor?

North Carolina Industrial Commission works to Combat Abuses by Employers who Incorrectly Classify Employees as Independent Contractors.

The Wage and Hour Division of the U.S. Department of Labor entered into an agreement with the North Carolina Industrial Commission on August 31, 2016 to help protect employees and lawful businesses from abuses by certain employers in classifying workers’ as independent contractors to avoid paying workers’ compensation benefits.  Governor Pat McCrory’s Executive Order 83 from December 18, 2015 had established an Employee Classification Section within the North Carolina Industrial Commission to help investigate abuses and this agreement follows that effort.

See the following for the news release and full bulletin here.

If you've been injured on the job and denied workers comp benefits because your were wrongfully classified as an independent contractor, you should contact an experienced attorney.