Mississippi Commission’s Decision to Deny Claim Because of Employee’s “Refusal” to Take Breathalyzer Test Cannot Stand

Yesterday, in a divided decision, the Court of Appeals of Mississippi reversed a decision by the state’s Workers’ Compensation Commission (“Commission”) that had denied an employee’s workers’ compensation claim because the employee had refused to take a breathalyzer test after the injury occurred [McCall v. Sanderson Farms, 2017 Miss. App. LEXIS 420 (Aug. 1, 2017)]. The Court found that the Commission’s decision was not supported by substantial evidence where the employer’s own evidence showed that the employee had remained on the employer’s premises for more than an hour and a half after suffering a painful back injury, that the employee left the premises at that point to go to a nearby hospital emergency department for treatment, and that shortly after the injured employee left, a contracted technician arrived at the employer’s premises to administer the breathalyzer test.

Background

Other evidence indicated that a different technician, whose function it was to perform a urine drug test, had already arrived at the employer’s premises. The technician testified that the injured employee initially provided an untestable urine sample, so she requested that he take another one, telling him he could wait up to three hours to take it. Complaining of deep back pain, the employee immediately downed 40 ounces of water, took a cup into the restroom, and failed to produce a sample. The employee testified that, due to his pain, he lost his temper and walked out, heading for a nearby hospital, instead of giving another sample.

Employee Consented to Drug Testing at Hospital

The Court noted that once the employee reached the hospital, he consented to drug testing and, indeed, tested negative for amphetamines, barbiturates, benzodiazepines, cocaine metabolite, marijuana metabolite, methadone, opiates, phencyclidine, and propoxyphene. No breathalyzer test, however, was ever offered or administered to the employee and he was discharged approximately two hours after arrival.

Did He Actually Refuse to be Tested?

The AJ and the Commission differed as to whether the employee “refused” drug and alcohol testing, triggering the state’s rebuttable presumption (Miss. Code Ann. § 71-3-121). The AJ found that the employee did not refuse drug or alcohol testing and that he willingly submitted to a urine test at the employer’s premises, even though the test was inadequate. The ALJ’s decision to award compensation was based on a finding that the employee’s urine sample at the hospital tested negative for drugs/alcohol. However, the employee was never tested for alcohol.

The Commission reversed, finding that the employee knew he was required to submit to drug and alcohol testing and refused to do so at the employer’s premises. The Commission further found that the employee rebutted the presumption that he was using drugs with his negative urine sample at the hospital. It ultimately held that since the employee did not rebut the presumption that he was under the influence of alcohol at the time of injury, his injury was not compensable.

The appellate court indicated that the employer had 90 minutes to administer an alcohol test and did not do so. Since the employee consented to drug testing at the hospital, it could not be said that he had refused alcohol testing.

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