Missouri Skips the Light Fandango Denying Comp Drug Penalty

The Commission affirmed a denial of an anti-drug policy defense to a permanent total claimant who appeared to have used cocaine shortly before the accident. Hertzing v Beck Motors, 2015 Mo WCLR Lexis 2 (lexis.com), 2015 Mo WCLR Lexis 2 (Lexis Advance) (January 9, 2015)

The employer introduced a drug test which suggested recent cocaine use. A toxicologist testified that the worker likely used cocaine. The employer had an unambiguous anti-drug policy.

An employee in Missouri who fails to obey any rule or policy adopted by the employer related to a drug-free workplace may lose 50% of benefits if the injury was sustained in conjunction with the use of non-prescribed drugs. 

The ALJ denied the penalty and found the employer failed to establish the accident was sustained in conjunction with the use of drugs and also found the employer did not show the employee violated the drug free work place policy.

The employer’s biggest problem in the case was its own policy.

The drug free work policy permitted one test but shifted the burden to the worker to request a confirmatory test. Neither the employer nor the lab notified the worker timely of the positive drug test nor provided a sample. The employer did not provide notice of the results for 46 months and then failed to produce the sample for further testing.

The employer’s second biggest problem was the expert testimony.

The expert further failed to convince the ALJ that the accident was in conjunction with drug use. Claimant denied drug use. There were no corroborating witnesses of drug like behavior. The toxicologist indicated that he could not say it was in conjunction with the accident or affecting the worker’s brain or nervous system and could only conclude the exposure was likely a day or two before the accident. He indicated that a blood test, rather than urine, was the proper standard to evaluate drug impairment.

The Commission noted that initial drug screens sometimes generate false positive results and may have a poor chain of custody. The lab results relied upon by the employer by their own description were non-forensic. The employer offered no additional testimony to try to establish a separate foundation regarding chain of custody. The Commission regarded the results as not persuasive.

The Commission indicates the initial drug screen established no proof that claimant had drugs in his system in violation of an anti-drug policy because the screen identified inactive metabolites which at best suggested only recent drug use. “It would appear the record lacks any evidence which we could find that employee failed to obey employer’s rule or policy related to a drug-free workplace.” The test identified the “presence of inactive metabolites associated with the use of such drugs.”

So what are the most important takeaways?

From the risk management perspective, it makes little sense to have a drug testing policy that does not produce tests of forensic quality. That type of limited policy has only the deterrent impact of an empty police car to deter speeders with no real enforcement mechanism. Any case worth testing is worth a confirmatory test with proper controls for chain of custody. Employment decisions made on incomplete drug tests may represent a greater hazard to an employer than having no policy for drug testing at all.

The employer who invokes a statutory forfeiture has a duty to comply with its own procedural requirements established in its drug-free work place policy. The ALJ found the employer did not comply with its own policies, and found a duty to notify the worker of the result and provide a sample upon request as its own policy allowed for re-testing.

A defense based on reliable forensic testing should be asserted early and applied against benefits prior to an award. The final award sought the credit against past benefits paid during the preceding 5 years. One alternative would have been to invoke the penalty earlier before paying more than $100,000 in benefits on the claim. The belated formal assertion of the defense has the appearance of a Hail Mary pass.

Don’t forget this fact, you can’t get it back.

Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug’s Mo. Workers’ Comp Alerts.

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