Wednesday, December 31, 2008

Alcohol and Drug Issues in Workers Comp

              The Commission affirmed a denial of a Hail Mary anti-drug policy defense to a permanent total claim involving a 57-year old worker who tripped while descending a ladder and required a hip replacement. Hertzing v Beck Motors, 2015 Mo WLR Lexis 2 (January 9, 2015)

                The employer introduced a drug test which suggested recent cocaine use and had a toxicologist testify that the worker likely used cocaine within a day or two of the accident.    The employer had an unambiguous anti-drug policy.
          So what went wrong?

            Missouri provides where the employee fails to obey any rule or policy adopted by the employer related to a drug-free workplace or the use of alcohol or non-prescribed drugs in the workplace, the compensation and death benefits provided for herein shall be reduced 50% if the injury was sustained in conjunction with the use of alcohol or non-prescribed drugs. 

The ALJ concluded because the employer failed to show that claimant violated any policy of the employer and that the evidence did not establish his injury was sustained in conjunction in use with drugs.

                The drug free work policy permitted one test but shifted the burden to the claimant to request a confirmatory test. The employer nor the lab notified the employee timely of the positive drug test nor provided a sample.   As the employer’s procedures allowed the employee an opportunity to challenge the results and independently test the sample, the employer could not invoke the policy.  The employer became aware of the positive drug test on June 22, 2009 and did not disclose the results to the employee until 46 months later.  When the worker asked for a sample, the employer failed to produce it.  

                The employer’s expert further failed to convince the ALJ that the accident falling off the bottom rungs of a ladder was in conjunction with drug use.  Claimant denied drug use.  There were no corroborating witnesses of drug like behavior.  The toxicologist indicated that he could not say it was in conjunction with the accident or affecting the worker’s brain or nervous system and could only conclude the exposure was likely a day or two before the accident. He indicated that a blood test, rather than urine, was the proper standard to evaluate drug impairment.

                The Commission noted the drug screen by its own description was non-forensic, which the commission concluded meant it was not suitable for use in courts.  The employer offered no additional testimony to establish any foundation regarding chain of custody.

                The Commission then jumps the shark.  “It would appear that the record lacks any evidence from which we could find that employee failed to obey employer’s rule or policy related to a drug-free workplace.”  The Commission concludes the policy only prohibited the presence of illegal drugs and not the “presence of inactive metabolites associate with the use of such drugs.” (benzolecgoine).

So what are the most important take aways?

From the risk management perspective, it makes little sense to have drug testing policy that does not produce tests of forensic quality.  Any case worth testing is worth a confirmatory test with proper controls for chain of custody. Employment decisions made on incomplete drug tests may represent a greater hazard to an employer than having no policy for drug testing at all.

The employer has a duty to comply with its own procedural requirements established in its drug-free work place policy.  The ALJ found the employer did not comply with its own policies, and found a duty to notify the worker of the result and provide a sample upon request as its own policy allowed for re-testing.   

A defense based on reliable forensic testing should be asserted early and applied against benefits prior to an award.  The final award sough the credit against past and future benefits in a hearing about 5 years after the accident. This reduction of benefits sometimes is not done because it may force a temporary award.  The ALJ’s award suggests a perception of fundamental unfairness from nondisclosure, even though there is no “rule” requiring disclosure of a drug test in a statement demand or a “rule” requiring all potential defenses pled in the initial answer. 

           While the ALJ indirectly faults the defense for hiding the ball the real problem here is procedural weaknesses in the employer’s own drug policy before the accident occurred. 

           The decision portrays the defense as a Hail Mary move which was not raised for 4 years.  The employer provided more than $100,000 in medical and TTD benefits over several years.  The employer asserted that the last accident did not total claimant and any incapacity to work flowed from prior multiple orthopedic and cardiac impairments.  Claimant asserted total alternately against the employer or SIF. The ALJ found the employer alone liable for the PTD, although conceded the expert testimony was “phrased somewhat awkwardly.”   She found that claimant quit work because of pain, a repeated error noted by the Commission because claimant stated he resigned because he qualified for social security.

           The award included prior TPD benefits based on claimant’s “non-specific” testimony that he could only tolerate working partial days.  The commission noted proof of TPD requires proof of diminished earning capacity and did not require the employee to “prove his actual earnings during the relevant time periods.”   

            The 31-page decision includes meticulous fact finding with more than 100 footnotes and even observations that there is a one penny discrepancy in the computation rate.  The Commission issued a separate opinion to highlight what it considered to be typos in the award among other findings.  The employer was defended by a former administrative law judge.  

ALJ Ruth
Atty:  Barnes, Murphy
Experts:  Fevurly, Carr, Eldred, Cordray

By contrast, a  court in Mississippi recently found that cocaine use 2-3 days before an accidental fall at work disqualified a claimant from benefits when the employer's expert  toxicologist indicated that residual effects likely caused fatigue and disorientation in addition to other testimony that claimant appeared 'out of it.'  Walker v  Williams Transport, 139 S. 3d 117 (Miss. Ct. App. 2014).


The employer failed to show that claimant "refused" a drug test after a work accident and now owes for ongoing temporary benefits for worsening sciatica for  a temporary employee with chronic back pain and the Commission further finds the employer forfeited several defenses by its own late answer.   King v American Employment Group, 2014 Mo WCLR Lexis 143 (December 30, 2014).

The case shows procedural pitfalls when an employer tries to invoke a penalty under 287.120.6(3) which allows forfeiture of all benefits in certain cases for refusing to take a test.  In this case, the employer asserts that claimant signed a "waiver" that he was giving up comp benefits.

The ALJ found that worker and employer disputed  whether the employer specifically required a drug test at the doctor's office and accepted claimant's story that a drug test was not expressly requested.  There was a company policy that supported post-accident drug testing. The Commission found the language of the signed  "waiver" did not support the defense.   The court notes the handbook itself   "does not state supervisors may offer alternatives to avoid a positive drug test" and  "the release contains no reference to the refusal and Mr. Rathmann could not explain why he failed to include it in the release."

Claimant stated he was forced to take narcotics at the hospital over his objection which he did not want to take because of a prior addiction problem.  He  admits that he used marijuana a few days earlier.  He admits a long history of chronic pain. 

The commission found claimant waived any defenses regarding wage rate and awarded benefits at the maximum statutory rate as the employer had not filed a timely answer nor requested an extension of time to file an answer. 

The  claim  asserted "boilerplate" language that he was entitled to maximum wages.  The employer contends such representations were a misrepresentation.  The claim would entitle claimant to the same weekly benefits  as someone making $64,000 a year and claimant had worked only  briefly on an erratic schedule performing banquet work.   The Commission found the employer's argument was not "persuasive" and that it had waived any right to object by not filing a timely answer.

The claim named the wrong corporate entity but the Commission found the two entities were inter-related and no prejudice from the employer trying to excuse a late answer by asserting improper notice to a wrong address or insisting it should have received certified notice (when no rule supported the defense).  The commission noted that the "failure to timely exercise its rights under that regulation or an implied concession that it lacked good cause for such an extension."  "Nevertheless, employer asks us to assume that it did not timely receive a copy of employee's claim for compensation, based on its argument that employee incorrectly identified 2342 LaSalle Street, St. Louis, MO 63104 as employer's mailing address in his claim for compensation, pointing to Mr. Rathmann's testimony that the correct address as of August 2013 would have been 222 S. 21st Street, St. Louis, MO 63103.  Yet, in employer's answer filed with the Division on October 11, 2013, employer listed 2342 LaSalle Street, St. Louis, MO 63104 as its  mailing address. Employer cannot reasonably complain that others used the 2342 LaSalle Street address where employer itself identified that address as correct as late as October 2013."
The commission found the parties stipulated that claimant sustained an accident arising out of his employment.  Claimant's expert opinion supported an injury.  The ALJ found the accident caused "acute symptoms."  The employer's own expert found an exacerbation of chronic back pain from a likely prior disc herniation which required treatment days before the work injury.

ALJ:  Carlisle
Atty:  Keefe, Kauphusman
Experts:  Kennedy, Coyle

Employer must request drug test to assert forfeiture defense
 An employer’s defense went up in smoke under an anti-drug policy when it did not directly request a claimant to submit to a post-accident drug test. Two hospital nurses told the claimant that the comp insurance company wanted a drug test. Claimant declined. Since the employer did not directly request a drug test, the employer failed to establish that claimant had refused a test to submit to a drug test requested from the employer, as required by the forfeiture statute. The case is Roscom v Woodstone, DOLIR 1-12-2010, reversing a denial of benefits by the administrative law judge. Claimant, 23, worked for a building company in 2008 when a wall collapsed on him, rendering him a paraplegic. At the March 2009 temporary hearing for medical benefits, claimant had incurred over $200,000 in medical expenses and was not yet at maximum medical improvement and had not returned to work. The employer paid about $58,000 in lost time and medical benefits and denied further liability due to claimant’s refusal to submit to a drug test. The employer had a drug policy that allowed random drug testing, but did not expressly authorize post-drug testing. The employer did not directly request drug testing after claimant’s initial refusal to submit to a drug test. Section 287.120.6(3) allows forfeiture for refusal to take a test for alcohol or non-prescribed control substance at the request of the employer if the employer had sufficient cause to suspect the use of alcohol or non-prescribed controlled substance by the claimant or if the employer’s policy clearly authorizes post-injury testing. The record identifies no suspicion of drug use before the nurse’s requested that claimant consent to a drug test. Claimant’s employer did not require post-accident drug testing in its employment manual. The Commission declined to adopt findings by the administrative law judge whether a post-injury drug testing policy existed by oral agreement. The administrative law judge found that the two nurses had acted on behalf of the employer’s insurance company and their request satisfied the requirements of the statute. Missouri reform provides substantial defenses in claims by employees injured in conjunction with their use of alcohol or nonprescribed drugs, involving penalties to 50% or complete forfeiture of benefits if used in violation of the employer's rule or policy is the proximate cause of the injury, pursuant to 287.120.6(1)(2).

BAC not per se bar to benefits
In an unpublished, Illinois case, Scoggins v Illinois Ind. Comn., 2014 Ill App. Unpublished Lexis 813, claimant failed to prove work comp benefits on the findings that his level of intoxication was the cause of his accident and represented a departure from his employment.  In the first instance, there was toxicology evidence estimating the level of intoxication at the time of his accident and that level impaired his vision, cognitive function, reaction time, attention, judgment.  The arbitrator found .179 BAC was the sole cause of his accident.  The arbitrator could find claimant lacked credibility that he did not depart from his employment and performed his job duties for 6 hours before the accident.  His judgment to attempt to lift a 1000 door on his own "could have reasonably concluded that claimant's decision to act alone with respect to the 1,000-pound kiln door was a serious miscalculation of judgment influenced by his excessive consumption of alcohol."

Expert:  Long

THC in system alone no defense to comp case

An employer failed to establish that a positive THC test proved that claimant used marijuana on the job in violation of a company safety policy or that use of marijuana impaired him at the time of the accident.  Toxicology experts could only establish that the injury was sustained in "conjunction" with the use of drugs or that claimant was impaired. 

 The employer sought a safety penalty violation because it asserted claimant "fail(ed)
 to obey any rule or policy adopted by the employer relating to a drug-free workplace or the use of alcohol or non-prescribed controlled drugs in the workplace" and the injury was
"sustained in conjunction with the use of alcohol or non-prescribed controlled drugs."  
"He got down on his back into the crawl space under the machine, and reached up to loosen the bolts and take tension off the belt. He had his left hand on the belt, and his hand got sucked into the machine up to his mid forearm. His arm was stuck in the machine for two to three minutes before he and a co-worker could loosen some bolts in order to remove his arm."  
The Commission modified a typographical error but otherwise affirmed an award of about $57,000 representing 60% of the elbow plus disfigurement, open medical, and reimbursement of underpaid TTD benefits.  Kelsey v Loy Lang Co., DOLIR 5-16-2013.

ALJ:  Hart
Atty:  Fox, Fox
Experts:  Schlafly, Rozman
Treater:  Goldfarb, Dave

This opinion is a complete reversal of the position in an earlier case which found  THC in the system was sufficient to invoke a drug penalty based on  use of marijuana 5 days before the accident.   Kelso v Empire Container Corp., 1997 Mo WCLR Lexis 63.  In Kelso the penalty was not applied to medical benefits and the comp rate was reduced 15%. 

In Division of Employment Security v Comer, 199 S.W.3d 915 (Mo. App. 2006) the court found the claimant was  qualified to receive  unemployment benefits despite  a positive drug test because the language of the employment book indicated that a positive drug test may result in termination but did not indicate that a positive test shall be deemed as misconduct.    Claimant allegedly used marijuana two weeks prior to a work related assault. 

In Zych v Wilson Waste Systems, ED 99204 (June 28, 2013) the court found the commission properly denied unemployment benefits based on an employee's  refusal to take a random drug test, although claimant asserted he was "confused" and thought he would be regarded as "failing" a drug test because he was taking prescribed medication for a knee injury. 

Wrongful death claim allowed for intoxicated employee

An employee of a funeral home drove a company van to a bar, he became intoxicated, and then he died in an accident on the way home. The court of appeals reversed a dismissal of the wrongful death claim from the minor child and surviving spouse against his employer and the company owners. Hays v Francis Royer etal, WD 74772 (Mo. App. 2012)(Sept. 18, 2012), 2012 Mo App Lexis 1163.

The employer, according to the petition, negligently entrusted the company vehicle to an employee known to be incompetent because he habitually drove while he was intoxicated. The court assumes allegations to be true in its review of a motion to dismiss. The employer allegedly knew that the claimant had been treated for alcoholism, that he drank at work, that he habitually drove while intoxicated, and previously he had passed out at work. Claimant could establish negligence if the defendants had a superior right to control the vehicle and had entrusted the vehicle to someone known to be incompetent because he “habitually drove while intoxicated.” This case is distinguishable from negligence arising from the employer directly observing claimant was intoxicated. Under Missouri’s pure comparative fault system, claimant’s recovery is not barred even if he may be more negligent than his employer.

There is no allegations that claimant sustained injuries in the course of his employment. This is a good test case how an employer should address impaired employees or control its policy regarding company vehicles. In this case, the claimant alleges because the employer had meetings to address claimant’s use of alcohol those corrective steps put them on notice of the impairment. The best remedy for an employer in these circumstances is further complicated because the claimant in this case was also a co-owner of the company. The court noted the claim as a matter of law could fail if the employer establishes that the claimant as co-owner had a superior or equal right to control the van.

When is positive drug test misconduct
The employer had two policies regarding drug use:  a general rule to prohibit employees from working in an impaired condition and a second agreement with the claimant regarding his drug use as part of a rehabilitation agreement.  The employer protested a claim for unemployment benefits when claimant tested at .06 BAC.
The court of appeals noted the employer failed in its burden to show misconduct without specific evidence whether the rehabilitation agreement meant zero tolerance when claimant testified it felt it barred only drinking on the job.  The Commission did not base its finding that the bar of working "under the influence" applied to any detectable level.   Ashford v Division of Employment Security, 2011 Mo. App. Lexis 1676 (Dec. 2011).  The case has important lessons, indirectly, for disputing  temporary total benefits for post-injury "misconduct" and formulating tighter interpretations of anti-drug policies. 

Good faith effort in drug test
The employer failed to prove claimant "refused" to take a mandatory urine test following an injury to his thumb, when claimant make a "good faith" attempt to urinate and claims he was just too dehydrated.
Section 287.120.6(1) allows a credit of 50% of benefits when the injury was sustained in conjunction wtih the use of alcohol or nonprescribed drugs. Claimant later provided a sample several hours after the accident, but the testing facility rejected the sample and claims he waited too long. The employer stated the drug test was important to investigate denied statements that claimant did not want to take a test because he was concerned whether he might test positive for marijuana. The employer fired claimant after the accident. Claimant had worked about 2 weeks as a boilermaker. Claimant was at the wrong place at the wrong time while working on a tower when a co-worker was hammering and a broken pin flew off impaling claimant's thumb. The commission unanimously affirmed ALJ Allen's temporary award for benefits which criticized the employer for its slow elevators, lack of a medical response team, and delays in providing a treatment until claimant urinated, just in case "claimant could fail a drug screen" and allow a chance for the employer to "escape" liability. Todd v Alstom Power Inc., DOLIR 5-20-10.

The dissent in Shelton v Delmar Gardens, DOLIR 6-24-10, argues contractual consent for drug testing in conjunction with medical treatment from the employer, does not apply when the employer does not actually tender treatment, and claimant has no obligation to submit to drug testing in those circumstances if he elects to merely treat on his own.

Alcohol use related to AVN
Claimant asserts he hurt his left hip and developed avascular necrosis after moving a table in 2005, resulting in a hip replacement about 3 years later. The Commission unanimously affirmed a denial of benefits. Dr. King related claimant’s AVN to alcohol use. Claimant according to the award had a history of alcohol pancreatitis, drinking a pint a day, drinking whiskey in his coffee, and drinking during the day and before medical appointments. Claimant’s medical expert, Dr. Volarich, argued that claimant drank only two or three cocktails a night. Although he agreed that alcoholism could cause AVN, he expressed no specific opinion on causation. The employer had paid about $5200 in medical benefits and stipulated to accident, but could not agree when any accident occurred. The administrative law judge found claimant argumentative and evasive. Claimant had profound pre-existing disabilities and several previous settlements. He last worked in 2006, but had several surgeries after the 2005 accident for unrelated conditions. Brown v Cenveo Color Art, DOLIR 3-30-10. The causation defense based on alcohol use has had mixed results in previous cases. In Peery v Midcontinental Industrial, DOLIR 2-25-08, claimant failed to prove his end-stage liver disease arose from drugs prescribed for his back injury, and not from his drinking beer daily for several years. In Rector v Integram St. Louis, Seating, DOLIR 2-26-08, however, the claimant proved his bilateral carpal tunnel duties arose from his assembly job, despite medical evidence from the employer’s expert that 4 beers a day caused claimant’s poly-neuropathy.

Other cases: Drinking After-Hours Did Not Violate Policy Not to Drink During Business Hours The Commission reversed a denial of benefits where decedent was intoxicated at .30 BAC, and a finding by the administrative law judge that he was too intoxicated to mentally engage in his employment. The Commission found the BAC evidence alone did not support that he had a 'blank' mind since he operated a vehicle, and talked rationally and there were questions about the reliability of the test due to possible blood contamination. The Commission also found no violation of the employer's rule or policy about drinking, since drinking rules applied only during business hours and claimant was drinking at an after-hours meeting. Barton, dec. v. W&M Properties, DOLIR 10-23-08

Drinking After-Hours without Business Equipment Supports Finding of Accident not arising out of employment Claimant with .221 alcohol died 1o hours after his quitting time, he had left all the tools of trade to perform surveillance in his hotel room, and found to be highly intoxicated. The claimant's wife stated claimant was very secretive about his job activities and the employer testified it was against company policy to drink while doing surveillance. Anderson, dec. v Veracity Research, DOLIR 11-26-08.

Drinking caused AVN, and not accident moving table Claimant alleges he experienced a "pop" while moving a table, and subsequently he was diagnosed with AVN and underwent hip replacement about 3 years after his accident. The Commission denied benefits based on expert testimony that claimant's alcohol use represented the more likely cause of his AVN, and found claimant's medical expert made false assumptions that claimant had more more modest consumption of alcohol. Claimant had two previous back cases with 47 1/2% disability, and after he stopped working in 2006 he underwent multiple surgeries for diverticulitis. The administrative law judge found the expert argumentative and evasive but concluded the claimant had an accident but couldn't prove disability or causation. The employer stipulated to accident, and paid nearly $5209 in medical benefits but could not agree when it occurred. The employer used an expert who performed hip surgeries. Brown v Cenveo Color Art, DOLIR 3-30-11.
 Atty: Christianson, Hilliker, Osborne
 ALJ Landolt
Experts King, Cantrell, Volarich, Lalk

Drinking Caused Liver Disease, and not claimant's use of medicine for work-injury
 Claimant used acetaminophen, and died at age 45 about 7 months after a back surgery after rapidly advancing liver disease. In a battle of the experts, the Commission found the employer's expert better qualified and more credible, noting that claimant's expert testified about "numerous studies" to support his theory but could never identify any of them. Peery, dec. v Mid Continental Industrial, DOLIR 2-25-08. Employer sanctions not supported when reasonable basis to suspect intoxication In a remand decision fighting over attorney's fees for unreasonable defense, the Commission found in a 2-1 award that the employer had reasonable suspicion that claimant violated company policy based on use of meth/marijuana based on test results, supporting their defense to completely deny of benefits. The dissent argued that there was insufficient evidence to support a blank mind defense to deny 100% of the benefits. Nolan, dec. v Dugessa Admixtures, DOLIR 8-1-08.

Employer evidence of heavy drinking fails to support causation defense
The Commission upheld a temporary award for medical treatment based on an alcohol defense. Claimant developed carpal tunnel syndrome, and reported he made up to 100 car seats a day working part-time with an assistant. The employer relied upon a medical defense that his carpal tunnel arose from his heavy consumption of alcohol. Claimant testified he enjoys his beer, enjoys 6-8 beers daily when he does not work, and drinks before work days and during lunch but had no "problem." Rector v Integram, DOLIR 2-26-08.