John Shelton v. Delmar Gardens

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-083796

Employee: John Shelton

Employer: Delmar Gardens

Insurer: Travelers Insurance Company

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated November 25, 2009, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Joseph E. Denigan, issued November 25, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $24^{\text {th }}$ day of June 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based upon my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

Employer/insurer bears the burden of proving that employee forfeited his benefits. "The burden of establishing any affirmative defense is on the employer...In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true." § 287.808 RSMo.

Section 287.120.6(3) RSMo provides, in relevant part:

An employee's refusal to take a test for alcohol or a nonprescribed controlled substance, as defined by section 195.010, RSMo, at the request of the employer shall result in the forfeiture of benefits under this chapter if the employer had sufficient cause to suspect use of alcohol or a nonprescribed controlled substance by the claimant or if the employer's policy clearly authorizes post-injury testing.

We must construe the above provision strictly. See § 287.800.1 RSMo.

Employer argues that forfeiture is appropriate under $\S 287.120 .6(3)$ because employer's policy clearly authorized post-injury testing and employee refused to take a test for alcohol.

The language of employer's drug and alcohol policy relating to post-injury testing appears in the pre-printed attestation above employee's signature on an undated document entitled Notice to Employees of Delmar Gardens Enterprises, Inc. The attestation reads, in relevant part, "I understand that if in the event I am injured while on the job, I will be subject to a drug and/or alcohol test upon receiving treatment." (Emphasis added.)

Jessica Hayes, employer's assistant administrator and human resources director, explained the policy: "When an employee is hurt or injured on the job they are required to submit to a breath alcohol, and drug screen upon treatment at our medical center. And if they do refuse or do not submit to that they are subject to termination." (Emphasis added.)

Jeanna Woods, employer's administrator, described employer's post-injury alcohol and drug test policy, too. "Whatever day they go for medical treatment they have to submit to that test." (Emphasis added.)

A careful reader will note that the plain language of the policy makes employee's obligation to submit to a drug and/or alcohol test contingent upon employee receiving medical treatment. The testimony of employer's human resources director goes further and makes employee's obligation to submit to a drug and/or alcohol test contingent upon employee receiving treatment from employer's authorized medical provider.

The fly in the ointment of employer's forfeiture argument is that the Missouri Workers' Compensation Law imposes no duty upon employee to accept treatment from employer's medical provider. Employee has an absolute right to choose his own physicians. Section 287.140 RSMo, plainly states that, "[i]f the employee desires, he shall have the right to select his own physician, surgeon, or other such requirement at his own expense."

In summary, employer's policy only required employee to submit to alcohol or drug testing if employee accepted treatment from the medical providers chosen by employer. Employee chose his own physician and accepted that he would have to pay for the medical expenses associated with that treatment. Employer's policy did not unequivocally and clearly mandate that employee submit to post-injury alcohol and drug testing under the circumstances of this case.

There is no evidence that employer ever requested that employee take a test for alcohol or nonprescribed controlled substances. No witness testified to asking employee to take an alcohol or drug test. No medical records reflect any such request. The only evidence regarding a test is the following statement appearing in an August 21, 2006, letter from Dayetra Sloan of Concentra to employer: "When [employee] finally came inside we took him in the back for his Breath Alcohol Test and he refused all treatment." (Emphasis added). Ms. Sloan did not record that she asked employee to submit to any test.

The absence of any evidence of a request by employer that employee take a drug or alcohol test is fatal to employer's argument that forfeiture is appropriate in this matter.

There is no evidence in the record that employee refused to take a test for alcohol or drugs. The only evidence regarding a test is the following statement appearing in an August 21, 2006, letter from Dayetra Sloan of Concentra to employer: "When [employee] finally came inside we took him in the back for his Breath Alcohol Test and he refused all treatment." (Emphasis added).

All that Ms. Sloan asserts is that employee refused treatment. Employee concedes as much. Unless it is conducted for the purpose of determining the appropriate course of medical service to provide, a test for the presence of alcohol is not "treatment." "Treat" means, "to care for (as a patient or part of the body) medically or surgically: deal with by

Improve: John Shelton

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medical or surgical means: give a medical treatment to...: to seek cure or relief of (as a disease)." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2435 (2002).

Examinations conducted merely to allow the employer to determine questions of causality or liability generally do not constitute "medical treatment." *Faries v. ACF Industries, Inc.*, 531 S.W.2d 93, 97 (Mo. App. 1975). See also, *Meekins v. St. John's Reg'l Health Ctr., Inc.*, 149 S.W.3d 525 (Mo. App. 2004) (drug screen is not medical treatment).

Employer has proven employee refused treatment. Employer has failed to establish employee refused to participate in an alcohol test. The forfeiture provision of § 287.120.6(3) is not triggered in this case.

Employer/insurer offered as evidence *some* records of a Division of Employment Security unemployment compensation case involving employee and employer. The records stop short of the evidentiary hearing and all subsequent proceedings. Employer/insurer's incomplete offer is explained by § 288.215 RSMo, which prohibits using decisions of the Appeals Tribunal and the Labor and Industrial Relations Commission as evidence in actions not brought under the Missouri Employment Security Law.

1. Any finding of fact, conclusion of law, judgment or order made by an appeals tribunal, the labor and industrial relations commission or any person with the authority to make findings of fact or law in any proceeding under this chapter shall not be conclusive or binding in any separate or subsequent action not brought under this chapter, and shall not be used as evidence in any subsequent or separate action not brought under this chapter, before an arbitrator, commissioner, commission, administrative law judge, judge or court of this state or of the United States, regardless of whether the prior action was between the same or related parties or involved the same facts.

1. Any finding of fact, conclusion of law, judgment or order made by an arbitrator, commissioner, commission, administrative law judge, judge or any other person or body with authority to make findings of fact or law in any proceeding not brought under this chapter shall not be binding or conclusive on an appeals tribunal or the labor and industrial relations commission in any subsequent or separate proceeding brought under this chapter, regardless of whether the prior action was between the same or related parties or involved the same facts.

1. Nothing in subsection 1 of this section shall be construed to prevent the use of evidence presented in any proceeding under this chapter in any other proceeding not brought under this chapter.

There were further proceedings in the unemployment case that are not documented in the exhibits offered by the employer/insurer. Relying on the incomplete record of the proceedings in the unemployment case, the administrative law judge found that, "a certified copy of the Employment Security records were introduced into evidence and those contain a finding that the claimant refused to undergo alcohol testing and was terminated by the employer in connection with his misconduct in that regard." While the administrative law judge's description of one of the unemployment exhibits is accurate, the exhibit is not persuasive on the issue of whether claimant refused to undergo alcohol testing. The "finding" referenced by the administrative law judge was merely the determination of a Division of Employment Security deputy. Deputy determinations are the result of a preliminary investigation and are not based upon evidence presented in an evidentiary hearing. See § 288.070 RSMo.

Although not helpful to determining the refusal issue, the Division of Employment Security records raise one important issue. The records suggest that employer repeatedly misled employee about his rights under the Workers' Compensation Law. Section 287.140 RSMo, plainly states that, "[i]f the employee desires, he shall have the right to select his own physician, surgeon, or other such requirement at his own expense." Employer is not required to pay the medical bills associated with treatment an employee secures on his own. But an employee making such an election to treat with doctors of his own choosing does not forgo other benefits under the Law. Notwithstanding employee's clear right to choose his own physician, employer's representatives repeatedly told him he was required to seek treatment through employer's medical providers. Here's a sampling of some of the misstatements appearing in the records submitted by employer to the Division of Employment Security.

Jeanna Woods - "I told him he must go to concentra!"

Angela Harpole - "I counseled Mr. Shelton that he must attend Concentra Medical Center in order to receive paid workman's compensation by Delmar Gardens."

"Mr. Shelton stated to me that he did not want to be seen at Concentra, and that he had already been seen by his own doctor. Again, I reminded Mr. Shelton that he had to be seen by a Concentra doctor in order to obtain paid workman's compensation. At this time he stated he would like to take sick days for the $12^{\text {th }} thru 15^{\text {th }}$, and would return to work. In accordance with his own doctors' statement, I told him that he was on restricted duty and could not return to work on full duty and that Delmar Gardens would not honor paid light duty unless specified by a Concentra doctor. At this time again Mr. Shelton refused to see a Concentra doctor and agreed to take a week off of work for the time of