Wetzel v Production Castings
2017 MOWCLR LEXIS 7
Jan 24, 2017 (Denigan)
The Commission awarded total disability for a CRPS claim and affirmed a denial of a drug defense based on a post-injury drug test positive for marijuana.
Claimant slipped and fell while carrying a heavy item and sustained a trimalleolar fracture. Claimant contends he was permanently total and not partially disabled and entitled to sanctions.
The parties offered conflicting evidence whether claimant had CRPS. The Commission concluded claimant had CRPS, which it felt was not inconsistent with the absence of clinical findings on other exam on their theory that symptoms wax and wane. The Commission modifies the award from partial to total disability noting the high degree of impairment when claimant's condition is symptomatic.
A dissent argued the employer should be penalized for reducing TTD benefits by 50% for 46 weeks because there is no violation of the employer policy or evidence of drug use in conjunction with the accident.
"Employee is not accused of manufacturing, distributing, dispensing, possessing, selling, purchasing, or using any controlled substance, illegal drug or drug paraphernalia on employer's property. Instead, employer's position is that employee "failed to obey" its drug-free workplace policy when he provided a post-accident urinalysis that was deemed positive for marijuana metabolites. But employer's policy does not state that a positive post-accident drug screen constitutes a violation of the policy; instead, this event merely triggers the two specified options, from which the employee may choose. The only relevant penalty under employer's written policy comes after an employee provides two positive drug test results."
The dissent argues there is no expert opinion to establish the "in conjunction" burden of proof to overcome claimant's denials, and finds the reduction in benefits was egregious because it jeopardized the worker's financial security.
The ALJ had awarded 75% partial disability and open medical, and denied the drug penalty.
The ALJ noted that no one had pursued underpayment as a hardship issue. "Notice and demand to Employer for reinstatement of full TTD benefits for the miscalculation is administrative in nature. Apparently, this misunderstanding and miscalculation was not the subject of a Motion or hardship hearing. It is undisputed that Claimant has positive drug screens. Indeed, both of Claimant's experts avoided this recurrent subject-matter. TTD rates are miscalculated often enough and no precedent is cited for award of fees and costs in this circumstance. While Claimant is awarded the underpaid TTD benefits, the evidence of the drug tests demonstrates that Employer did not defend the issue without substantial evidence.."
The Commission found that walking and wearing shoes in a video was not inconsistent with the claim of CRPS and was part of the rehabilitative process to desensitize.
