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EMPLOYER GRANTED SUSPENSION ON
DEFENSE OF POSITIVE DRUG TEST

Wallace Brewer v. WCAB (E2 Payroll & Staffing Solutions),
(Commonwealth Court, April 2013)


The Claimant was struck at work by a forklift operated by a coworker.  Claimant first went to the employer’s panel, and was then transferred to a local ER.  Claimant was informed he would be drug tested.  He responded by indicating that he had consumed some controlled substances several days prior, and allowed that the drug test would probably be positive.  Sure enough, the test was positive, and Claimant was discharged from his employment.

In response to Claimant’s Claim Petition for benefits, Employer admitted the occurrence of this incident, but denied that any compensable disability resulted from the work incident.

In his testimony before the Workers’ Compensation Judge, Claimant acknowledged he was aware of the employer’s “zero tolerance” drug policy, and admitted to his use of controlled substances several days prior to the occurrence of the work injury.  He also agreed that he had told his supervisor that the then-pending drug test would probably be read as positive, and that he would not dispute that result.

The IME orthopedist found Claimant had sustained a disc herniation, so that Claimant was limited to perform only sedentary work.  The Claimant’s expert, a chiropractor, testified that Claimant was unable to return to any work at all.

The Employer’s witness reiterated the conversation she had with Claimant about the drug test, and claimant’s indication that he expected it would be positive.  The employer witness also testified that the company had a lighter duty return to work policy, and had Claimant not been discharged, a position would have been made available for Claimant within his physical restrictions.  The employer did not make any attempt to admit the drug test results into the record.

The Workers’ Compensation Judge found Claimant had sustained a work injury, but suspended claimant’s eligibility for wage loss benefits, effective as of the date of his discharge.

Claimant appealed to the Board which affirmed, and then to the Commonwealth Court.

The Commonwealth Court affirmed the trial court and the Board, allowing the suspension of Claimant’s benefits to stand.

Claimant argued that a suspension was not warranted because the employer had never issued a Notice of Return to Work to Claimant.  However, the Court held that this otherwise threshold requirement was not applicable in this case.  The reasoning was that the employer was not seeking to modify or suspend Claimant’s wage loss benefit eligibility on the basis of any medical evidence concerning the existence or resumption of Claimant’s ability to work.  Rather, in this case, the suspension was properly imposed by virtue of Claimant’s misconduct.

Claimant also argued that his loss of earning power existed by virtue of the uncontradicted occurrence of his work injury, and the fact that even employer’s medical evidence documented that Claimant was disabled from full duty employment.  This, Claimant contended, should trump the fact of his discharge for drug use.

However, the Court found that Claimant’s disability – defined as loss of earning power – was the result of his discharge from employment, which was in turn based upon the uncontradicted fact of his violation of the employer’s drug use policy.  Also, the Court did not disturb the WC Judge’s finding that work would have been available for Claimant consistent with his physical limitations, but for the fact of his discharge for his conduct.

Claimant also contended that that the evidence provided about the drug test was insufficient to stand as the basis for his discharge.  However, the Court pointed out that Claimant himself had testified that had used controlled substances prior to the occurrence of his work injury and that he had no basis to dispute that the subsequent drug test would be positive.

  • I think the most interesting issue here is how the drug test itself was handled by the Workers’ Compensation Judge and subsequently by the Board and the Commonwealth Court.

The Commonwealth Court freely accepted that the employer’s evidence regarding the drug test was entirely hearsay – however, this hearsay was corroborated by the Claimant, and that was enough to constitute substantial evidence as to the positive drug test results.

We have litigated a number of these drug test cases, and we have never had a situation where, as in this Brewer case, the Claimant admitted to the drug use and went on to stipulate as to the accuracy of the drug test results.

So, in most any claim you will encounter where the employer states it has a positive post work incident drug test, the test results will have to be introduced into evidence, along with credible testimony documenting the chain of custody regarding the administration of the test itself and the maintenance of the report of that test.  That is, proofs will have to be presented to the Court that the Claimant was the one tested and that the test results to be offered pertain, without any question, to the Claimant.

From an evidentiary standpoint, when a party offers evidence contending that the evidence in question is connected with a person or an event, the party offering that evidence must substantiate the claimed connection.  Stated otherwise, the employer seeking to offer the drug test evidence must authenticate the test itself, and establish that the report of that test has remained intact and unaltered up to the time it is presented to the Court.

This is often a difficult challenge for employers, so the employer’s risk managers, interested claims examiners and defense counsel have to take a hard look at this evidence if there is going to be any hope of successful presentation to the Court.

We cannot count on the Claimant to prove our defenses for us.

Mark L. Mazzanti, Esquire
[email protected]


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