Missouri: Commission Doesn’t Believe Employer That He Requested a Drug Test

The employer failed to show it required a drug test after a work accident and now owes for ongoing temporary benefits because the worker states his severe chronic back pain is worse since his accident. King v American Employment Group, 2014 Mo WCLR Lexis 143 (lexis.com), 2014 Mo WCLR Lexis 143 (Lexis Advance) (December 30, 2014).

The employer denied all benefits and asserts since claimant refused to take a drug test he gave up any rights for benefits under the Act.  Section 287.120.6(3) allows forfeiture of all benefits in certain cases for refusing to take a drug test. In addition, the supervisor had the employee sign a release.

The ALJ found the statutory forfeiture did not apply.   The ALJ found the worker more credible that the employer did not require a drug test. A company policy allowed post-accident drug testing.  The court notes the handbook itself   "does not state supervisors may offer alternatives to avoid a positive drug test" and  "the release contains no reference to the refusal and [the employer’s witness] could not explain why he failed to include it in the release."  It noted:  “Claimant testified he told Mr. Rathmann he may test positive because of the narcotic drugs he was given at the hospital and marijuana ingested three days earlier, but he denied refusing to take the drug test.”  The worker states he did not want to take the narcotics because of a prior drug problem.

The case reflects a recalcitrance against forfeiture based on drug test issues.  Kelsey v Loy Lange Box Co., 2013 Mo WCLR Lexis 78 (lexis.com) 2013 Mo WCLR Lexis 78 (Lexis Advance) (failure of proof that working while “impaired” based solely on positive marijuana tests), Todd v Alstom Power, 2010 Mo WCLR Lexis 82 (lexis.com) 2010 Mo WCLR Lexis 82  (Lexis Advance) (failure of proof of refusal to take test based on ‘good faith’ attempts).  The employer did not question that an accident occurred and its own expert concluded that the accident probably worsened a prior disc herniation.

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

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