Employees testing positive for alcohol or drugs in their system at the time of injury face an uphill battle to recover workers’ compensation benefits. Under subsection 440.09(3), Florida Statutes (2018), compensation is not payable if the injury was occasioned primarily by the intoxication of the employee. If the employer has reason to suspect that the injury was occasioned primarily by the intoxication of the employee or by the use of any drug, urine and/or blood testing is authorized. A positive test result may create the presumption “that the injury was occasioned primarily by the intoxication of, or by the influence of the drug upon, the employee.” Section 440.09(7)(b), Florida Statutes (2018). Unless the employee can overcome the presumption, benefits will be denied. Section 440.09(3).
- “If the employer has implemented a drug-free workplace, this presumption may be rebutted only by evidence that there is no reasonable hypothesis that the intoxication or drug influence contributed to the injury.” Section 440.09(7)(b), Florida Statutes (2018).
- “In the absence of a drug-free workplace program, this presumption may be rebutted by clear and convincing evidence that the intoxication or influence of the drug did not contribute to the injury.” Section 440.09(7)(b), Florida Statutes (2018).
Standard number 1 is more difficult for claimants to overcome than number 2. Sometimes, neither applies. In Wright v. DSK Group, 821 So.2d 455 (Fla. 1st DCA 2002), testimony was adduced from witnesses that claimant had ‘”smoked marijuana on the day of his injury.”‘ Relying on this testimony alone, the judge of compensation claims (JCC) applied the presumption and required the claimant to meet standard number 2. The JCC was reversed on appeal, with the court holding that the presumption did not apply and the employer failed to meet its burden that the work-related injury ‘”was occasioned primarily by the … influence of any drugs … not prescribed by a physician.”‘ Section 440.09(3), Fla. Stat. (1999). See generally Temporary Labor Source v. E.H., 765 So.2d 757 (Fla. 1st DCA 2000) (affirming a ruling that the presumption authorized by section 440.09(7)(b) does not arise when confirmation testing did not conform with applicable rules and that, as a result, the employer was required to establish that the injury was caused primarily by the influence of drugs), review denied, 786 So.2d 1189 (Fla.2001). “When the presumption in section 440.09(7)(b) does not apply, employer/carriers must `establish, by the greater weight of the evidence, that the work-related injury was occasioned primarily by the intoxication of the employee.'” See Thomas v. Bircheat, 16 So. 3d 198, 200 (Fla. 1st DCA 2009) (quoting Wright v. DSK Group, 821 So. 2d 455, 456 (Fla. 1st DCA 2002); see also Sterling v. Mike Brown, Inc., 580 So. 2d 832, 835 (Fla. 1st DCA 1991) (affirming JCC’s order finding employee’s injury was primarily caused by his intoxication even without presumption).