Legal Ease

• Photo courtesy of Chadwick Technology Pty. Ltd., Forestville, Australia.

To better understand the intricacies of workers' compensation, it might help to consider a fictional situation and apply the law accordingly. Suppose one of your employees was performing work on a commercial construction project. The employee's only access to the roof was via a ladder. While climbing the ladder to get to the roof, the employee lost his balance, fell and was injured. The employee was taken to the hospital, and the workers' compensation claim began.

As part of your internal investigation, you learn the employee was smoking marijuana earlier that day. You also learn the employee may have had marijuana in his vehicle when he reported to the office before taking a company truck to the job site. You are convinced the employee's marijuana use contributed to the accident when further investigation reveals the employee was driving the company truck erratically. Based on your investigation, you want to ensure the workers' compensation claim is defended vigorously because you believe the claim should be denied.

Following are some questions roofing contractors often ask immediately following a workplace accident that results in an injury.

Questions

1. If my internal investigation reveals an injured employee used drugs earlier in the day, how will I be able to confirm the drug use?

Many state workers' compensation laws address drug testing of injured employees. In most states, if a drug test reveals an employee had drugs in his system, a presumption is made the injury was caused by illegal drug use unless the drugs lawfully were prescribed by a physician and taken in accordance with the prescription. The presumption also arises if an employee refuses to submit to a drug or alcohol test. The presumption puts the burden of proof on an employee to show an injury was not caused by drug use or intoxication. If an employee cannot overcome the presumption that drug use caused an accident, his workers' compensation claim will be denied.

2. If the hospital administers a drug test, do I get to see the results?

Generally, when an employee submits a claim for workers' compensation benefits or receives payment of weekly income benefits or his employer has paid any medical expenses, the employee has waived any privilege or confidentiality concerning communication related to the claim, history or treatment of an injury, including communication with psychiatrists or psychologists. Most states require the physician who has examined, treated or tested an employee or consulted on the employee's case to provide to the employer all information and records related to the examination, treatment, testing or consulting within a reasonable period of time and for a reasonable charge.

In Arizona, for example, legislation specifically exempts those involved with a workers' compensation claim from requiring a claimant's written authorization before releasing medical records. In Florida, an employee who reports an injury or illness alleged to be work-related waives any physician-patient privilege reasonably related to his condition. In New York, the state Workers' Compensation Board permits a workers' compensation carrier to communicate with a medical provider without a claimant's permission. On the other hand, in South Carolina, though medical records concerning or relating to workers' injuries are required to be disclosed to employers, communication between workers' compensation carriers and physicians is prohibited.

Many states also require employees to provide employers with signed releases for medical records and information related to a claim, history or treatment of injury arising from an incident, including information related to the treatment of any mental condition or drug or alcohol abuse. If the release is not provided, an employee's benefits can be terminated. Alternatively, in some states, such as Florida, an employee's authorization is not required to release medical records relevant to a claimed injury. But in Florida, if an employer is not governed by the state's laws, the employee is required to provide written authorization for the release of medical records.

3. While I wait until I receive the results of drug tests and other medical records, the injured employee's car is in my parking lot. Can I search the car for drugs?

When contemplating whether to search an employee's vehicle parked in your parking lot, consider whether the search constitutes an invasion of privacy. Invasion of privacy is a state law tort claim defined by courts as the intrusion by a defendant using means objectionable to a reasonable person into a matter a plaintiff has a right to keep private. Whether a search of an employee's car is permitted depends on whether the employee reasonably expects the contents of his vehicle to remain private while the vehicle is parked in your parking lot.

If your company policy prohibits drug activity at the workplace or employees from arriving at work under the influence of drugs and states the company will investigate employee wrongdoing in the workplace, employees face a diminished expectation of privacy concerning their vehicles' contents if vehicles are parked at the company's offices.

An injured employee who brings his vehicle to a job site and gives his keys to a co-worker to return the vehicle to the office also has a reduced expectation of privacy because he has consented to the use of the vehicle by a third party. But what if the co-worker drives the car to the injured employee's home? In this case, though the employee has made his vehicle available to his co-worker, the employee is likely to have a reasonable expectation of privacy regarding the contents of his vehicle while parked at his house. If the co-worker discovers illegal drugs in the car and brings the drugs to your attention, you have not engaged in a "search" and the invasion of privacy claim is a non-issue. Rather, the employee had placed his trust in his co-worker and is left without legal recourse.

For union contractors, an invasion of privacy claim may require reference to and interpretation of a collective-bargaining agreement to determine whether an employer can search an employee's vehicle. When a collective-bargaining agreement must be consulted to determine whether an employer's actions are appropriate, the state law is pre-empted by the federal Labor Management Relations Act. The federal Labor Management Relations Act pre-empts any state cause of action for violation of a collective-bargaining agreement. Importantly, the statute of limitations for claims brought under the Labor Management Relations Act is six months, but the statute of limitations for state invasion of privacy tort claims may be two years or longer.

4. If I decide to search an employee's car and find illegal drugs, should I call the police?

Whether to call the police to report drugs or drug paraphernalia found in a vehicle is up to you. There is nothing in workers' compensation laws that requires you to report drugs to the police, and there is nothing in the laws that prohibits you from calling the police to report the contents of an employee's vehicle. Reporting the incident to the police will create a record to argue drugs were the cause of the accident and a claim should be denied on that basis. The police also may conduct further investigation on your behalf, and your actions would be consistent with your position that the accident was caused by drug use or intoxication.

5. It turns out my employee was not using drugs, and there were no drugs in the car. My carrier is going to pay the claim. Do I face any additional liability as a result of the employee's injury?

Many roofing contractors mistakenly believe their only liability for a work-related injury is covered by their workers' compensation policies. These contractors may have heard of the exclusivity rule in many state workers' compensation statutes. The exclusivity rule generally says an employee's exclusive remedy for a work-related injury is benefits provided from a workers' compensation carrier. However, depending on your state, you may face additional liability from third parties and/or the employee's spouse and dependents. Whether you will have to pay those additional claims depends on your insurance coverage.

Pure workers' compensation coverage provides benefits for injured workers as required by state law—regardless of who is at fault for the injury or illness. In other words, whatever benefits your state requires you provide for injured workers will be paid by your workers' compensation policy provider.

Liability coverage provides employers with liability protection in case they are sued for damages arising from employment-related accidents or diseases. But to collect benefits provided by this additional coverage, employees, as well as anyone else not covered by workers' compensation laws (such as spouses and dependents), would have to prove you were legally responsible for an injury or disease.

Learn your rights

By knowing your rights, you are better-equipped to conduct an investigation immediately after receiving notice of an accident rather than having to consult an insurance agent, attorney or hospital. There is no better time to investigate the cause of a work-related accident than during the period immediately following the accident. By knowing your rights to access information from medical providers, you can begin your defense to a claim.

Philip J. Siegel is an attorney with the Atlanta-based law firm Hendrick, Phillips, Schemm & Salzman.