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).
In Brinson v. Hospital Housekeeping Services (Fla. 1st DCA 2018), the claimant was unable to overcome presumption number 2. The claimant, who fell and dislocated her shoulder, tested positive for marijuana. In an effort to overcome the presumption, claimant attacked the limits of drug testing. She presented testimony from two experts that the tests did not conclusively indicate that drugs are active in the bloodstream or have caused impairment. Neither expert was able to say, however, whether the positive tests correlated with real-life behavioral effects. Thus, according to the DCA, “Ms. Brinson’s witnesses left open the question of whether she was under the influence when the accident occurred.” Because this testimony did not present clear and convincing evidence (standard #2) that the “influence of the drug did not contribute to the injury,” the rebuttal standard required by section 440.09(7)(b), the JCC’s denial of benefits was upheld on appeal. (In my opinion the dissent in Brinson is more reasoned and logical than the majority opinion, explaining how shortcomings in drug testing can lead to unfair outcomes.)
In Hall v. Recchi Am, Inc., 671 So.2d 197 (Fla. 1st DCA 1996), a drug-free workplace case, the claimant defeated the presumption by demonstrating no relationship between a positive drug test and the workplace accident. Uncontradicted testimony established that the industrial accident resulted from a co-worker tripping and jabbing him in the back of the head with a screed. The DCA was also persuaded by drug testing expert testimony. Claimant’s expert testified that urine testing is inherently incapable of determining whether the active drug was present in an individual at the precise time of the injury. He also explained that the concentration of inactive metabolite found in the claimant’s urine was entirely consistent with his having smoked marijuana five days before the industrial accident, as contended by the claimant, and that an individual who smokes marijuana remains impaired for only four to six hours following ingestion of the marijuana. This impairment testimony went further than the impairment testimony given in Brinson. (A note of caution: While Recchi is a drug-free workplace case, it was decided before standard number 1, above, was added to 440.09(7)(3). That said, the outcome may well have been the same under current law.)
In Stepanek v. Rinker Materials Corp., 697 So.2d 200 (Fla. 1st DCA 1997), the claimant tried unsuccessfully to defeat the presumption by showing no relationship between a positive alcohol reading and the workplace accident. The claimant had climbed onto a piece of equipment to fix something. The operator of the machine, who did not see him, started the machine, crushing the claimant’s foot. The DCA agreed with the JCC that by unnecessarily climbing onto the equipment, the claimant irrationally placed himself in a position of peril, contrary to company policy, training standards, and common sense. While the opinion doesn’t say so, the JCC must have concluded that the alcohol made the claimant behave irrationally.
Inmon v. Convergence Employee Leasing III, Inc., (Fla. 1st DCA 2018), the Employer/Carrier (E/C) were not entitled to the presumption due to their non-compliance with the collection and chain of custody procedures set forth in the administrative rules. See, e.g., European Marble Co. v. Robinson, 885 So. 2d 502, 506-507 (Fla. 1st DCA 2004) (holding that lack of compliance with administrative rules on blood-alcohol testing precludes presumption that injury primarily occasioned by alcohol). “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).
Section 440.09(7)(d) (2018) provides that “The agency [the Agency for Health Care Administration] shall provide by rule for the authorization and regulation of drug-testing policies, procedures, and methods. Testing of injured employees shall not commence until such rules are adopted.” These are the rules enacted pursuant to this section:
- Rule 59A-24.003 Definitions
- Rule 59A-24.004 Drugs to be Tested/Body Specimens
- Rule 59A-24.005 Collection Site and Specimen Collection Procedures
- Rule 59A-24.006 Drug Testing Laboratories — Standards and Licensure
- Rule 59A-24.008 Review of Test Results
The takeaway from this blog is that positive alcohol and drug test results can and should be challenged.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
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