Jeffrey P. Gale, P.A. // Key to Defeating Florida Workers’ Compensation Drug Defense is Preventing Presumption of Impairment

A popular defense utilized by Florida employers and their workers’ compensation insurance carriers (E/C) to keep from having to pay workers’ compensation benefits is the drug defense under section 440.09(3), Florida Statutes. In pertinent part, the section provides as follows:

(3) Compensation is not payable if the injury was occasioned primarily by … the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician….

It is routine for specimens to be drawn — typically urine — shortly after an accident, often before medical treatment is provided for the injury. Specimen collectors will even go to hospitals in cases where emergency medical care is required.

A companion to 440.09(3) is 440.09(7)(b), which provides:

… if the employee has a positive confirmation of a drug as defined in this act, it is presumed that the injury was occasioned primarily by the … influence of the drug upon, the employee. 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. 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.

Both presumptions are exceedingly difficult to overcome. The trick for the claimant is to keep the presumption from being implemented.

Before addressing this subject, it should be pointed out that, in the case of marijuana and cocaine, two of the most popular recreational drugs in our society, the “positive confirmation of a drug” does not equate to proof positive of being under the influence of either drug at the time of the accident. This is because the confirmation testing employed by labs does not detect the element of the drugs that cause impairment. Rather, the testing detects metabolites, which are merely markers showing that the drug has been ingested at some unknown point in time within days and sometimes even weeks of the specimen draw, while the impairment time from these drugs is typically 4-6 hours maximum. This is a big part, in my editorial opinion, of what makes the drug defense so unfair. Many Claimants are being kept from receiving needed workers’ compensation benefits even though the positive confirmation relates to weekend or after-hours use instead of any connection between impairment and the accident.

Back to the presumption.

Because the consequences of a denial of benefits can be substantial, even life altering — for example, we currently represent a gentleman whose benefits are being denied even though he is paralyzed from the waist down from a fall — Florida law requires close compliance with collection, testing, reporting, and reviewing standards for the presumption to be applied. The standards are set forth in the Florida Administrative Code, sections 59A-24.003-24.008.

A failure to comply with the administrative rules precludes the presumption. Thomas v. Bircheat, 16 So.3d 198 (Fla. 1st DCA 2009)(quoting Wright v. DSK); European Marble. Co. v. Robinson, 895 So.2d 502 (Fla. 1st DCA 2004); Wright v. DSK Group, 821 So.2d 455 (Fla. 1st DCA 2002); and Temporary Labor Source v. E.H., 765 So.2d 757 (Fla. 1st DCA 2000).

Significantly, if the presumption is disallowed, the E/C is obliged to establish, by the greater weight of the evidence, that the work-related injury was “occasioned primarily by the influence” of a drug or drugs. Temporary Labor Source v. E.H., 765 So.2d 757 (Fla. 1st DCA 2000). In other words, instead of the injured worker having to prove that his or her injury was not caused by drug impairment, the burden is on the E/C to prove that the accident was caused by impairment. This is big.

Surprisingly, it is not uncommon for there to be a failure of compliance sufficient to deny E/C the favorable presumption. The Claimant’s lawyer must obtain all chain of custody and other case-related documents from the employer, the carrier, the specimen collector, the lab, and the medical review officer. If the specimen was collected by hospital staff instead of an E/C-hired collector, the hospital’s medical and lab records must also be obtained.

Once these records, especially the chain of custody records, are scrutinized and understood in relationship to the applicable Administrative Codes, the various individuals involved in the process, such as the specimen collector, lab director, and medical review officer, must be examined by deposition under oath. Each should be challenged to show compliance with every requirement of the Codes, sometimes down to particular words and phrases.

This is the procedural stuff. Experts must also be involved to examine the records from the toxicological and pharmacological aspects. It is these experts who will discuss, for example, the difference between metabolites and active ingredients associated with drug use. These witnesses may also have special knowledge on the procedural aspects such as chain of custody.

The task of handling a drug defense case may seem daunting … but it is manageable. Accept the challenge.