Thinking Outside the Box by Looking For That Negative Drug Test Result

08 Jun, 2012 Bob Wilson


I am currently in New Orleans for the National Workers' Compensation Defense Network's summer seminar. Today, during a session discussing a "think outside the box" strategy, Attorney and NWCDN member Will Ross offered up a few salient ideas, including this provocative thought: 

In an adversarial claim where a claimant is being prescribed narcotics as part of their treatment, give them another drug test. However, unlike the immediate post accident test that so many of us are accustomed to, or virtually any other drug test most of us would be familiar with, this test would be looking for the proverbial "opposite result". A negative one. One that may show no narcotics in the claimants system, and raise the inevitable question, where are the drugs going?  

Beside the illegal drug activities such a result may suggest, it also provides the employer a clearer path to a favorable result. If the drugs are not in their system, is the pain they claim real? The concept is a game changer.

Ross also suggested that employers and their carriers consider the possibility for some claims of settling indemnity while leaving medical open. Admittedly this is a concept that will be foreign to many, but Ross indicated that the "big numbers" being suggested for MSA's are in some cases "killing the settlement", and are not an acceptable solution on the carrier side. Settling on indemnity, according to Ross, has often resulted in a "secondary advantage" in the form of reduced medical expenses, because the reason for seeing a doctor to extend temporary compensation has been eliminated. Ross cautions that this is not a cure all, and conditions where employers are dealing with potential drug seeking behavior on the part of the claimant will not benefit from this strategy. 

Ross also suggested that employers consider seeking MRI's early in the claim process where appropriate. Citing reduced costs for the procedure as well as its exploratory benefits, he suggested that employers might want to consider this option, as an earlier diagnosis could speed recovery and reduce temporary benefit payments to the employee. This would be particularly useful for potentially drawn out claims where more conservative treatment is not working, and where MRI's are likely to be approved at some point in the future.

Also on the panel was fellow NWCDN attorney Robert Maciorowski and Nancy Carroll of Sun Healthcare Group. The panel was lead by NWCDN attorney Mike Fish. 

This was a fun session with good humor and great information from all participants, and Ms. Carroll's take no prisoners delivery was a boldly refreshing approach for a seminar session of this nature. They certainly gave us a good deal to think about, outside that proverbial box. 

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