Do worker's opioids make her permanently and totally disabled?
A worker sought workers' compensation benefits after she suffered a neck injury in the course of her employment. She had prior neck problems and underwent surgery six months before her injury. After a second surgery, she was prescribed an opioid pain medication. Later, she quit both her jobs.
Her doctor noted that she was opioid dependent and she wanted to get off the medication. The worker received increasing doses of the medication because she remained in pain. The worker also reported that her night vision became poor.
A doctor, who did not examine the worker, said that even if one is accustomed to the drug, it could cause dizziness, drowsiness, weakness, and confusion, and she should not engage in activities requiring alertness, including driving. The worker's surgeon said that she was unable to drive due to a permanent loss of motion and her continued use of medication. An independent medical examiner stated that she appeared alert and oriented. The examiner noted that patients could develop a tolerance to the sedative effects of opioids and pointed out that a person taking opioids could qualify for a commercial driver's license. The examiner concluded there were no cognitive work restrictions and that the worker could rotate her body sufficiently to drive.
The worker lived 15 miles away from a city where jobs were located. She said that she felt "scatterbrained" and could only drive one mile. She asserted that she was not capable of driving because she was opiate dependent and therefore she was permanently and totally disabled.
The trial court found that the worker could drive a car and that she sustained a 33 percent loss of earning power. It held she was entitled to temporary and permanent benefits. The review panel agreed. The worker appealed.
Was the trial court correct in finding she was capable of driving?
A. No. The worker's inability to drive 15 miles rendered her permanently and totally disabled.
B. No. As a matter of public policy, those under the influence of opioids should not drive.
C. Yes. The evidence showed that the worker was capable of driving.
How the court ruled: C. In an unpublished decision, the Nebraska Court of Appeals held that the worker was not permanently and totally disabled. Barrett v. Keep Kimball Beautiful, No. A-11-587 (Neb. Ct. App. 12/27/11, unpublished).
The court emphasized that an examination revealed that the worker did not have cognitive work restrictions, which indicated that she could operate a vehicle. She could also rotate her body sufficiently to check for blind spots and look to the rear when backing up a vehicle. She appeared alert and oriented at her examination.
A is incorrect. The court concluded that the worker could drive, so she was employable in the general labor market.
B is incorrect. The court explained that although she felt "scatterbrained," she was able to drive. No evidence showed that the medication impaired her ability to operate a vehicle in a cautious manner. Also, the independent medical examiner said that a person taking opioids could drive safely and qualify for a commercial driver's license.
Editor's note: This feature is not intended as instructional material or to replace legal advice.
March 1, 2012
Copyright 2012© LRP Publications