Form Confusion Doesn’t add up to Refusal to Undergo Drug Testing

Case File

Because it looked like an injured worker signed a refusal to take a drug test under the misapprehension that it was a form to let her leave the hospital, an intoxication affirmative defense wasn't available to her employer. Simply Research subscribers have access to the full text of the decision.

Case

Parker v. Convergence Employee Leasing II, Inc., No. 24-004654NP (Fla. OJCC 11/11/24).

What Happened

A patient care technician for an assisted living facility was injured when a bed crank she was operating on a patient's bed malfunctioned and struck her on the head. She lost consciousness for several minutes and was taken to a hospital for treatment.

Before being discharged from the hospital, the technician signed a form indicating a refusal to undergo a post-accident drug test. Allegedly, the technician was unaware that the form signified her refusal to take a drug test.

Later, the technician learned that the carrier was requiring her to take a drug test before she could claim workers' compensation benefits, but she did not take one.

Rule of Law

Under Florida law, if an injured worker refuses to submit to a drug test, it is presumed in the absence of clear and convincing evidence to the contrary that the injury was occasioned primarily by the influence of drugs.

What the OJCC Said

The technician did not refuse to take a drug test, according to the OJCC, because the technician believed that the form she was signing was a refusal of any further medical treatment or testing so she could be discharged from the hospital.

The OJCC found the technician to be "sincere, credible, and believable" and attributed the drug test issues due to a lack of clear information being sent from the employer to the technician regarding the testing.

The OJCC awarded charges for the ambulance bill and reasonable attorney's fees and costs to the technician for establishing the compensability of the injury, legal responsibility for the ambulance bill, and for successfully defending the employer's affirmative defenses.

The Takeaway

While Florida law prohibits the payment of workers' compensation benefits for injuries occasioned primarily by the intoxication of the employee, an employer should make sure it's clear that the employee was refusing drug testing -- rather than under a misunderstanding -- before pursuing drug use as a possible affirmative defense.

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