Wayne Francisco v. Mega Industries Corporation

Employee's foreman, Steve Toth, directed employee to a nearby clinic, where employee submitted to a breathalyzer test. Next, personnel at the clinic asked employee to urinate into a cup, for purposes of providing a urinalysis. Employee began to panic, as he remembered that he had smelled the odor of marijuana at a nightclub he visited over the weekend. Employee does not use marijuana. But to employee's understanding, if he had smelled marijuana, it was just as if he had ingested it. Employee's panic overtook him, and he left the examination room. ${ }^{1}$

Employee approached Mr. Toth, who was elsewhere in the clinic. Personnel at the clinic requested that the two return to the examination room, and have their conversation there; the two complied. Employee informed Mr. Toth he didn't know if he could take the test because he might have marijuana in his system.

According to employee's testimony, Mr. Toth shook his head and simply responded, "I don't know what to tell you. I can't help you." Transcript, page 21. Mr. Toth, in his testimony, conceded he was unable to recall the specific words he used in this conversation with employee. Mr. Toth, however, believes he said something like the following, "You need to take it for-you know, our company policy is you need to take the drug test. It's in your best interest." Transcript, page 23. As more fully discussed below, we deem the evidence on this point insufficiently developed to support an affirmative finding that Mr. Toth unequivocally and unmistakably requested that employee submit to the urinalysis at that time. Instead, it appears to us that the actual request that employee urinate into a cup was delivered by personnel at the health clinic, ${ }^{2}$ and that thereafter, at best, Mr. Toth merely reminded employee, in generalized terms, of what employer's policy required. We so find.

After speaking with Mr. Toth, employee again tried to calm down and submit to the drug test. He was unable, however, to overcome his feelings of panic. So, employee left the clinic, and went home.

Employer's post-injury drug testing policy provides, in relevant part, as follows:

[A]ll employees with a workplace injury or who were involved in a workplace injury will be required to take a drug screen and alcohol breathalyzer test. ... Tests will be performed by regional testing labs in accordance with State and/or Federal law. Refusal of an employee to take a Test will result in immediate removal from service and will result in

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[^0]: ${ }^{1}$ Employee credibly testified that he has been diagnosed with bipolar disorder, for which he has taken prescription medications in the past. He was not, however, taking medication or receiving any other type of treatment for this condition during the time period leading up to May 13, 2015. Owing to the absence of any medical testimony or other evidence on the topic, we decline to make a finding that employee's bipolar disorder played a role in his actions on May 13, 2015. We deem it appropriate, however, to note employee's credible testimony in this regard.

${ }^{2}$ There is no evidence on this record to support a finding that the personnel at the health clinic were agents of employer.

disciplinary action up to and including termination. ... A positive drug screen and/or alcohol breathalyzer test after a workplace accident can limit or disqualify the employee's claim for workers' compensation benefits.

We note that employer's policy is silent with regard to the actions by an employee that may be deemed a refusal to submit to a drug test. Specifically, we note the absence of any temporal restriction or timeframe wherein employees are required to either assent or decline a requested drug test. We note also the absence, on this record, of any evidence that the breathalyzer exam or the proposed urinalysis of May 13, 2015, were conducted (or were to be conducted) in accordance with state and federal law.

On May 14, 2015, employee received a phone call at his home from Craig, another foreman. Craig instructed employee that if he wished to remain employed, he needed to submit to a urinalysis. Employee agreed to Craig's request to take the test. We find that employer first unequivocally requested that employee submit to a urinalysis on May 14, 2015. We find that employee did not refuse to submit to that drug test, but agreed to take it. The result of that drug test was negative.

Employer initially accepted its liability for the workplace accident of May 13, 2015, and provided employee with authorized medical treatment and the payment of weekly temporary total disability benefits. However, at some point, employer stopped providing workers' compensation benefits.

Employee remains in need of medical treatment. Owing to the disabling effects of the work injury of May 13, 2015, employee has been unable to return to work since that date. Employee has been unable to seek additional medical treatment, because he cannot afford it.

The parties stipulated that employee sustained a compensable injury by accident on May 13, 2015, but employer advances an affirmative defense alleging that employee forfeited his benefits pursuant to § 287.120.6(3) RSMo by refusing to take a drug test at the request of employer. Section 287.808 RSMo provides as follows:

The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation under this chapter is on the employee or dependent. 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.

Pursuant to the foregoing, it was employer's burden to prove its affirmative defense that employee forfeited the compensation to which he is otherwise unquestionably entitled on the basis of what has been stipulated to be a compensable work injury. Section 287.120.6(3) provides as follows:

The voluntary use of alcohol to the percentage of blood alcohol sufficient under Missouri law to constitute legal intoxication shall give rise to a rebuttable presumption that the voluntary use of alcohol under such circumstances was the proximate cause of the injury. A preponderance of the evidence standard shall apply to rebut such presumption. An employee's refusal to take a test for alcohol or a nonprescribed controlled substance, as defined by section 195.010, 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.

It was employer's burden to prove the following factual propositions are more likely to be true than not true: (1) that employer requested employee take a test for a nonprescribed controlled substance, (2) that employee refused to take the test, and (3) that employer's policy clearly authorized post-injury testing.

With regard to the first element, we have found the evidence in this matter insufficiently developed to support an affirmative finding that employer unequivocally requested that employee submit to a drug test on May 13, 2015. Instead, we have found that the personnel at the health clinic-who were not shown on this record to be agents of the employer-delivered the initial request that employee urinate into a cup, and that thereafter employer's first unequivocal request that employee submit to a drug test occurred when the foreman, Craig, called employee on May 14, 2015. We have found that employee did not refuse that request.

Employee did discuss the proposed urinalysis with his foreman, Mr. Toth, on May 13, 2015. Mr. Toth, however, was unable to remember the specific words he used when speaking with employee, and we have found that, at best, Mr. Toth merely reminded employee, in generalized terms, of what employer's policy required. A generalized reminder regarding employer's policy is, in our view, materially different than a specific request from Mr. Toth that employee return to the examination room and urinate into a cup, especially when we are asked to apply § 287.120.6(3) to impose a total forfeiture of benefits for a work injury that is, otherwise, unquestionably compensable.

With regard to the second element of "refusal," we have noted that, while employer's policy certainly contained a provision relating to post-injury testing, that same policy is silent with regard to the actions by an employee that may be deemed a refusal to submit to a drug test. The legislature specifically invoked the "clear" terms of employer's policy in crafting the language of $\S 287.120 .6(3)$, which suggests to us that a careful review of the policy itself is appropriate in determining whether the circumstances at issue clearly constitute the obligatory "request" by the employer and/or "refusal" by the employee.

**Injury No.:** 15-035903

**Employee:** W