Gibson: Abuse of Drug Testing by Carrier Doctors

Thursday, December 8, 2016 | 0

It is appropriate to compare the drug testing done for Olympic athletes versus those done on Texas workers.

John Gibson

Many states, including Texas, have a provision that creates a rebuttable presumption of intoxication when someone tests positive for drugs or alcohol.

However, a new use of drug testing is gaining in prominence in Texas workers' compensation law that is an abuse of the comp system.

In Texas, there are two kinds of doctors who can see an injured worker besides the treating doctor and the referral doctor. Those two kinds of doctors are the required medical exam doctor and the Division of Workers' Compensation designated doctor.

Normally, these doctors simply conduct an exam and render an opinion on a matter, but recently, certain overzealous doctors have started conducting drug testing of the injured worker at the end of the claim. This is a very serious matter because these doctors are then using the test results to justify ridiculously low compensation benefits, and it is not something that the Legislature had in mind when it wrote the law.

An RME doctor is one who sees the injured worker on behalf of the insurance company. The insurance company has to get prior approval from the Division of Workers' Compensation, and the insurance company can usually request only one exam every six months. The RME doctor is the only doctor allowed to examine the worker, and there is no provision in the law for the RME doctor to conduct any additional tests such as drug testing.

A designated doctor, or DD, is appointed by the Division of Workers' Compensation to serve in a supposedly neutral capacity for the state, to give an opinion on certain medical issues. A designated doctor can perform “additional testing necessary to resolve the issue in question” and is authorized to refer the worker to other doctors for testing when the DD is not qualified to fully resolve the matter in question.

What we are seeing are doctors who are performing drug testing on injured workers as part of the examination. If the drug test comes back positive, the doctor is using this positive finding as a basis for claiming some other problem is the cause of the injured worker’s complaints.

Usually, the doctor attacks the worker’s credibility, saying that the positive drug finding is indicative of habitual drug or alcohol abuse. Of course, the examining doctor does not take into consideration prescription medications that may be the cause of the positive drug screen. And even when the prescription medication is not the cause of the positive result, the doctor will assume the worker is a habitual drug abuser who is looking to scam the insurance company out of workers’ compensation benefits.

The threshold for testing positive for marijuana in the Olympics is 150 ng/ml. It is set to that level because those in charge of the Olympics understand that marijuana is a recreational drug that is used by enough athletes that the cutoff threshold needs to be sufficiently high to detect only those who use drugs during competition, when it would affect performance.

In other words, we don’t want athletes losing out on sponsorship money and causing issues with older, more conservative TV viewers back home just because they happened to smoke a joint a day before the competition.

Because Texas law allows for workers compensation judges to consider positive drug findings without regard of the amount, the stigma of testing positive for marijuana is enough cost a person thousands of dollars in workers' compensation benefits. Injured workers need to consult an attorney prior to any medical exam that is not conducted by their own doctors.

We celebrate our athletes and we tolerate their recreational use of marijuana. But for the hardworking residents of Texas who get injured — usually through no fault of their own, and then turn to their only remedy, Texas workers' comp — they don’t get a medal. They get kicked to the curb.

John E. Gibson is a trial attorney based in Lubbock, Texas. This column is reprinted with permission from the Texas Workers' Compensation Law blog.