Safety and OSHA News

Injured worker waited over an hour for drug test, none provided: Can he get comp?

The employer in this case said an injured worker refused a drug and alcohol test after an injury. The worker, who had yet to receive treatment for back pain, waited 90 minutes for people qualified to give the test before he left for the hospital. Can he get workers’ comp? 

Travon McCall worked as a cook-line operator for Sanderson Farms in Mississippi. While working the late shift, he bent down to pick up a tub that weighted between 30 and 40 pounds and injured his lower back. He reported the injury to his supervisor and went to the nurse’s office to wait for her to arrive which she did after about 20 to 30 minutes.

McCall provided an untestable urine sample because it was under 45 milliliters. The nurse requested another sample. McCall immediately drank 40 ounces of water given to him by the nurse, but still failed to produce a testable sample.

McCall says due to his pain, he lost his temper and walked out, heading for a nearby hospital. The record shows he had waited at least 90 minutes before leaving to receive treatment.

The nurse says as McCall was leaving, the technician arrived to give a breathalyzer test.

Valid drug test, but …

When McCall arrived at the hospital, a Sanderson supervisor was already there with workers’ comp papers. McCall signed forms agreeing to drug and alcohol testing. He provided a urine sample which tested negative for drugs. A breathalyzer test was never offered.

Two days after he was injured, Sanderson fired McCall with the reason for termination “voluntarily resigned” because of “refusal of drug/alcohol test” and because he “left without permission.”

McCall applied for workers’ comp. An administrative judge granted him benefits, but that decision was reversed by the Mississippi Workers’ Compensation Commission, which found he wasn’t entitled to comp because he refused alcohol testing.

Mississippi’s workers’ comp law says, “If the employee refuses to submit himself to drug and alcohol testing immediately after the alleged work-related injury, then it shall be presumed that the employee was using a drug illegally … or was intoxicated due to the use of alcohol … and the proximate cause of the injury was the use of a drug illegally … or the intoxication due to the use of alcohol by the employee.” If that’s the case, the employee would be denied workers’ comp benefits.

The administrative judge found McCall didn’t refuse drug and alcohol testing, noting that he submitted to a drug test at the hospital and its results were negative.

However, no alcohol/breathalyzer test was provided at the hospital. The Commission said McCall knew he was required to submit to drug and alcohol testing and refused to do so at Sanderson Farms. While the urine test at the hospital rebutted the presumption he was under the influence of drugs, since there was no breathalyzer test, it was presumed he was under the influence of alcohol.

A Mississippi appeals court reversed the Commission’s ruling, noting:

  • A supervisor was present at the hospital
  • McCall gave written permission for drug and alcohol testing
  • He remained on Sanderson’s premises and available for alcohol testing for 90 minutes after he reported his injury, and
  • Sanderson didn’t offer him a breathalyzer test at the plant.

“We find that the evidence is insufficient to support an inference that McCall intentionally refused to cooperate with his employer’s requirement that he submit himself to testing for alcohol,” the court found.

The appeals court awarded workers’ comp benefits to McCall.

(Travon McCall v. Sanderson Farms Inc., Court of Appeals of Mississippi, No. 2016-WC-01248-COA, 8/5/17)

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