Friday, February 10, 2017

Commission reverses drug forfeiture

Francisco v Mega Industries
2107 MOWCLR Lexis 13
Feb. 7, 2017 (Miner)

The Commission reversed a forfeiture of benefits based on 287.120.6  and found the ALJ erroneously found that claimant "refused" to take a drug test in violation of a drug-free work place policy when he walked out of a drug testing facility.

The ALJ noted:

"I find and conclude that Claimant refused to take a test for a non-prescribed controlled substance, as defined by section 195.010, RSMo, on May 13, 2015 at the request of the Employer, and that Employer had a policy at the time of Claimant's May 13, 2015 accident that clearly authorized post-injury testing. I find and conclude that Claimant's taking a drug test two days after he refused to take the test on May 13, 2015 did not negate or invalidate his earlier refusal to take the test on the date of the accident. I find and conclude that Claimant forfeited benefits under the Missouri Workers' Compensation law."

"Employer Exhibit 1, Employer Substance Abuse Policy in effect at the time of Claimant's May 13, 2015 accident states in part: "All new applicants are required to take a drug screen and alcohol breathalyzer (Test). Additionally all employees with a workplace injury or who were involved in a workplace injury will be required to take a drug screen and alcohol breathalyzer test." Exhibit 1 also states in part: "Tests will be performed by a regional testing lab in accordance with State and/or Federal Law. Refusal of an Employee to take a Test will result in immediate removal from service and will result in disciplinary action up to and including termination."

"Exhibit 2 is an Instant Drug Screen Consent and Report Form of U.S. HealthWorks dated May 13, 2015 pertaining  to Claimant. Exhibit 2 notes the "Reason for Test" is "Post-Accident. Exhibit 2 also states in part: "Donor refused to be tested." Exhibit 2 also states in part: "Pt. left @10:53 a.m. w/o Drug Screen or treatment for injury."

So what went wrong for the employer's defense in this case?

The Commission believes the employer failed to prove it  unequivocally asked for a test:  the request by the nurse to provide a urine sample is not a request from the employer to submit to a test because the nurse is not an agent of the employer.  The reminder of a drug policy by the employer at the testing facility is, to quote the Commission, "in our view, materially different than a specific request." The employer witness could not state precisely what he said to support an unequivocal request.

The Commission find the employer failed to show claimant refused to take a test because the policy did not define the time frame in which claimant to assent or decline the test, and he later agreed to take the test the next day.

The Commission did not question that the employer established a policy that allowed testing. 

The subsequent testing was negative.  Claimant asserted that he left the facility in a panic because he remembered he had been at a nightclub where someone used marijuana and felt that might produce a positive result even though he states he never used it personally.

The employer did not dispute that claimant sustained a back injury.  He has been off work for nearly two years and sought an award for benefits. 

The takeaway:  An employer who seeks a drug penalty should be prepared to  produce as  evidence that the employer after an injury  requested a drug test.  Similarly, the policy itself could define when a refusal is deemed a refusal.

The case was defended by Travelers.