Thursday, June 20, 2013

I'm Not Sleepy!

One of my favorite drug product warnings is on Demazin infant drops that warns infants not to operate machinery or drive because the medication may cause drowsiness. 

Following a work injury, the issue of drowsiness may arise in two cases.
One issue that arises is when a medicated worker returns to work after a work injury and is fired for sleeping on the job.  A claimant who is drowsy because of a medical condition or medications generally is not engaging in willful misconduct.  Each case is decided on individual circumstances, however.  The claimant who hides in a dark corner with an alarm clock, pillow and blanket may be regarded entirely differently than someone else who nods off briefly because of required pain killers.

Employers have a right to expect employees to be conscious during their scheduled shifts. Sleeping on the job would be a "conscious" disregard of that standard,” Judge Romines  noted in Nickless v St. Gobian Containers, 350 S.W.3d 871 (Mo. Ct. App. 2011).  Claimant was not found credible that he was merely resting his eyes after using eye drops when the claimant was found in a dark room, sitting in a chair with his head to his chest and eyes closed and did not respond when the door was slammed.   The Western District, however, has found exceptions based on the totality of the circumstances.   This analysis included the nature of the employee's job responsibilities, the location where the employee fell asleep, the employer's policy related to sleeping on the job, whether prior warnings had been given to the employee, and any other aggravating or mitigating circumstances.   In Richardson v Div. of Employment Security, 361 S.W.3d 425 (Mo Ct. App. 2011) the claimant was a night shift nurse who napped twice on the same shift but argued that the employer “made” her work.

Illinois recently addressed a similar issue under 820 ILCS 405/602(A) and concluded that a security guard  at O'Hare Airport who was caught sleeping on the job did not engage in willful misconduct to disqualify himself from receiving unemployment benefits.  The court noted that the worker was in an upright position which showed less of an intent to fall asleep.  A dissent argued that an employer performing security at an airport had a higher expectation of claimant not to return to work when he was tired.  Universal Security Corporation v the Department of Employment Security, 2015 Il App. 133886 (Feb. 18, 2015). 

These cases underscore the importance of employers before a work injury  to highlight the obvious:  Employees are expected to stay awake.  We really mean it.  Any employee who brings pillows, blankets to work may be subject to discipline, including termination.  Really.

In the second instance, the claimant alleges the desire to nap renders him or her disabled. The claimant alleges back pain made her sleep on the job and the claimant was fired for sleeping.   Swartz v Nevada Habitation Center, 2012 Mo. WCLR Lexis 140 (July 12, 2012).
ADA, by contrast, requires a higher standard of proof of a “serious medical condition” and it must “severely” restrict an individual performing activity of central importance.    In a recent district decision, the plaintiff failed to prove fatigue was a serious medical condition to trigger benefits under ADA or FMLA.[1]

More than 1 in 4 Americans have insomnia or sleep disturbance.[2] Drowsiness may an unintended consequence of medications, fatigue or simply spending too much time with lawyers and the court system.   The allegation of disability from sleep deprivation  requires further attention on a case by case basis.  It can be reasonably assumed most people some of the times aren’t sleeping well and given a choice would rather have a nice story, a glass of cold milk, and take a nap rather than finish the work day.  If vocational disability is predicated on a desire to nap then the concept of disability has lost any meaning.  

Wednesday, June 12, 2013

It's Not Just 'Sunshine on my shoulders' that makes Floridians happy

The Sunshine State  is back in the news again as Walgreens just agreed to pay an $80 million dollar fine to DEA involving an "unprecedented number" of record keeping and dispensing abuses of oxycodone.  One store alone ordered 1.7 million units.  The DEA alleged the prescriptions were being diverted for black-market use. 

Last year Florida's CVS's pharmacy chain was in the news.  One pharmacist was quoted that customers came in asking drugs by their "street names" that some medications were kept in the back for "real" patients.  
CVS paid a $34 million settlement to DEA back in 2008 because of abusive prescription practices. The average pharmacy dispenses 69,000 oxycodone pills and one store in Orlando dispensed over 5 million units from 2008-2011.  Orlando always has branded itself as the happiest place on Earth.                                                                                          
This, of course, brings to mind how often Missouri doctors  prescribe excessive drugs for Missouri comp patients.   Employers have an obligation  to try to cure and relieve workers of their injuries.  There is no statutory mandate to "light 'em up."   The cost of this abuse goes beyond Big Pharma greed, bloated MSAs, and part D skyrocketing costs. It causes irreparable harm to workers. 

Missouri is the only state in the country  to not adopt a prescription drug monitoring program. Some folks in Jefferson City feel that the best government is no government.
Legislative reform on this issue died once again in the 2013 legislative session   (SB 233, HB 347). Perhaps more Missouri politicians should go rent Winter's Bone to fully appreciate the danger of Missouri getting burned if the politicians spend too much time with their head buried in the sand.