Post-Accident Drug Testing: Part 3 — New York

The New York Workers’ Compensation Board and courts have previously accepted that an employee’s refusal to comply with an employer-mandated drug test constituted good cause for termination and a voluntary withdrawal from the labor market. In recent years, however, the Board and courts have taken a more discerning approach regarding the enforceability of employer policies which “seek to discourage their employees from pursuing Workers’ Compensation claims.” Matter of Asem v. Key Food Stores Co-Op and Matter of Rodriguez v. C&S
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Post-Accident Drug Testing: Part 2 — Missouri

Missouri’s drug penalty is set forth in Section 287.120 of the Missouri Workers’ Compensation Law. That section allows for reduction or forfeiture of benefits as follows: A 50 percent reduction of benefits if the employee violated the employer’s anti-drug policy, and if the injury was sustained in conjunction with the use of drugs; Forfeiture of all benefits if the use of drugs in violation of the employer’s policy was the proximate cause of the injury; and Forfeiture of all benefits
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Post-Accident Drug Testing: Part 1 — New Jersey

For New Jersey, a post-accident drug test can be helpful. In an unreported decision, the Appellate Division found that an injured employee terminated after he was placed on light duty, due to a failed drug test, is not automatically entitled to temporary disability benefits. Gioia v. Herr Foods, Inc., No. A-0667-10T4 (App. Div. Oct. 11, 2011). The employer provided testimony that it would have offered the injured employee light duty if not for the failed drug test. Since the lost
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Is That Offer Bona Fide?

Did you know that a voluntary offer to settle a workers’ compensation claim in New Jersey must meet three specific criteria to comply with state law? The offer must meet the 26-week rule — this means the offer must be made within 26 weeks of the last active treatment or return to work, whichever is later. The letter to the petitioner must explain the weekly payments are meant to be a bona fide offer of permanent disability. The start and
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The Interweb of Lies: Why Employers May Want to Look a Little Closer at Claimants’ Job Searches

Stop the presses — the majority of job applications are completed online now! Obviously, this comes as no surprise in the realm of New York Workers’ Compensation Law — the Full Board Panel handled this precise issue in Matter of Suffolk County Health Services (2016 NY Wrk. Comp. 0713095). Ultimately, the Full Board slightly modified the landmark decision of American Axle and determined that, when applying online, the claimant must either: Provide a confirmation e-mail or reference number; or If
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New York’s 2017 Workers’ Compensation Reforms: What They REALLY Mean for Employers and Carriers

When New York’s 2017 budget recently passed — bringing some significant changes to the state’s Workers’ Compensation Law with it — a great deal of misinformation as to how those changes would impact employers and insurers followed in its wake. Importantly, the passage of reforms as part of the budget did not include Senate Bills S4014, S4554, S4520, or S4345. Rather, changes were made as part of the budget bill S2009, and they are substantially different from these prior bills.
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“High Anxiety” for Carriers: Medical Marijuana Progressing in New York

For New York workers’ compensation carriers, the budding industry of medical marijuana will likely provide an interesting new set of challenges and concerns in the administration of treatment for eligible patients and injured workers. The growing trend across the United States has recently been towards expansion of medical marijuana programs — and as of March 31, 2017, approximately 28 states, including New York, have legalized some form of medical marijuana usage. New York’s Compassionate Care Act specifically details that patients
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Should Adjusters Consider Using Vocational Reports to Achieve Better Loss of Wage Earning Capacity Findings?

A hot topic at many workers’ compensation hearing locations is permanency: When will it become ripe? What evidence needs to be produced by the parties? How can we ensure the law judge will make a reasonable decision regarding loss of wage earning capacity? This is when the use of vocational reports comes into play. In simple terms, loss of wage earning capacity (LOWEC) is the reduction in an injured workers’ earning power due to a work related injury or disease. LOWEC
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If the “Last Act” to Trigger Employment Occurred Outside N.C., The Claim May Not Be Compensable

A recent decision by the Court of Appeals of North Carolina highlights, in the context of workers’ compensation claims, the importance of where the “last act” necessary to form an employment contract occurred — particularly for companies that draw workers from other states. The good news for employers is: If that step was taken outside North Carolina, the employer may have a jurisdictional defense. In Holmes v. Associated Pipe Line Contractors, Inc., _ S.E.2d _, 7 February 2017, the plaintiff
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Medical Marijuana Found Compensable in Connecticut

The Compensation Review Board (CRB) in Connecticut found medical marijuana to be reasonable and necessary medical treatment, and thus, compensable in Petrini v. Marcus Dairy, Inc., 6021 CRB-7-15-7 (May 12, 2016). It is black letter law that “reasonable and necessary” medical care is curative or remedial. “Curative or remedial care is that which seeks to repair the damage to health caused by the job even if not enough health is restored to enable the employee to return to work. Any
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