Positive Drug Test = Dismissal = Suspension

Many Employers have a work rule which requires a drug test upon the report of a work injury.
A positive result will result in termination of employment. When a disabiling work injury is alleged, the drug test results will impact the Employee's right to seek wage loss benefits.

Brewer v. WCAB (E2 Payroll & Staffing Solutions) No. 337 C.D. 2012, an unpublished panel decision of the Commonwealth Court of Pennsylvania authored by Judge Leavitt on February 13, 2013 addressed these issues.

Factual & Procedural History

May 1, 2009 Employee reported injury when co-worker driving forklift pushed a pallet into employee
                     pinning his back against a conveyor belt.
May 7, 2009 Claim Petition Filed! (less than one week)

Employer file Notice of Denial (box4) - Injury occured "lumber sprain" but no disablility.

Employee was examined at Employer's facility, Careplex.
Drug test ordered.
Restricted from working for 10 days, no lifting over 5 lbs.

To Pottstown Mem. Hospital ER from Careplex.
Given pain meds and told to ice back. (work restriction?)

Subsequent treat with Chiro Cavoto.
Diagnosed cervical disc bulges; lumbar disc herniations.

Employee testified he received Employer substance abuse policy. He took drug test at Careplex.
He received a letter from Employer notifying him he was discharged from employment for failing drug test. He stated he "wouldn't dispute that [the drug test] was positive".
He admitted to using cocaine and marijuana a few days prior to the work incident.

Employer Branch manager and Employee supervisor testified she drove employee to Careplex and Pottstown ER. He asked if he would be fired as he believed his drug test would be positive.
She testified as to employer zero-tolerance drug policy and employee receipt of policy handbook.

Careplex send Supervisor notice of positive drug test.
Supervisor sent Employee letter notifying him of discharge because of positive test.
Letter did not include a copy of the test results.

Supervisor testified that Employer has work available to employees with work restrictions.
If Employee had not been terminated for drug policy violation, there would have been a work position available to him within his restrictions. She did not identify any specific jobs suitable for Employee's physical restrictions.

Employer medical witness examined employee 5 months post-injury. He diagnosed a lumber disc herniation. He approved sedentary work restrictions as of the IME date. He also stated Employee would be limited in his ability to work by his medication use for the first month.

WCJ Decision

WCJ "granted" claim but found no compensible injury as employee was discharged for cause.
Work Comp benfits were "suspended" as of date of discharge. (medical benefits payable).

WCAB & Commonwealth Court Affirm

4 Employee Arguments:

#1. Employer failed to issue an LIBC 751, Notice of Ability to Return to Work.

Not required. The LIBC form is required by Section 306(b)(3) where Employer seeks a modification of benefits based upon medical evidence.

#2.  Post-injury discharge was not dispositive of loss of earnings.

Injury occurrence was not disputed. Employee argued for wage loss benefits as accident disabled him and Employer did not prove he was capable of working.

Court said loss of earnings was due to discharge for cause.
"Disablity" means a loss of earnings.
Here "disablity" was due to discharge, not due to physical injury.

#3. No substantial evidence to support finding Employee failed drug test.

Employee's own testimony and Supervisor testimony corroborated the test result.

#4. No substantial evidence He could return to sedenary work as of date of injury to support a
      suspension.

Employer medical witness said employee use of meds would impact ability to work for first month. Supervisor testified work was available but did not identify any jobs.
Employee failed to preserve issue regarding date of suspension. Issue was waived.


Practice Pointers

A. Drug Test Results. Submit "best evidence" which is the drug test result. Also submit employee
     policy handbook with any documents signed by employee at time of hire.

B. Work Availability. Document work availability with decriptions of job duties available but for
    termination. Document available work positions just as you would document any other job offer.
    If position would be specially created, document it and describe.
    Give a written job description(s) to Employer medical witness.

    HERE employee medication use was a concern for IME doctor... identify duties that would not raise
    these concerns... inventory, paper work, office work... anything away from warehouse, forklifts and
    lifting duties.

C. Medical Release to Work. Attempt to get a medical release as of the date of the injury.
    Would Careplex MD give release? (restricted work for 10 days)
    Would Pottstown ER doc give release? ( no mention re work)
    Try all of your options.

[These alternatives may not have been available to this employer, we can not determine from this apellate decision]